Night curfew meant to contain the spread of coronavirus (Covid-19) is legal.

Law Society of Kenya v Hillary Mutyambai, Inspector General National Police Service & 4 others; Kenya National Commission on Human Rights & 3 others (Interested Parties) [2020] eKLR

Petition No. 120 of 2020 (Covid 025)

High Court at Nairobi

W Korir, J

April 16, 2020

Reported by Chelimo Eunice

Constitutional Law – interpretation of constitutional provisions – constitutional test for determining the constitutionality or otherwise of limitation of rights and fundamental freedoms - parameters for establishing whether a limitation was reasonable and justifiable – constitutionality of the Public Order (State Curfew) Order, 2020 - whether unconstitutional and illegal acts that occur in the implementation of a legal instrument rendered that instrument unconstitutional - Constitution of Kenya, article 24.

Constitutional Law – rights and fundamental freedoms - curfew orders -  purpose of curfew – effects of curfew – purpose of curfew vis-à-vis it’s effects - what was the effect of curfew on rights and fundamental freedoms of individuals – whether imposition of curfew would limit some rights and fundamental freedoms - what were some of the rights and fundamental freedoms limited by curfew orders – whether covid-19 pandemic amounted to a threat to life which right was a fundamental right protected by the Constitution – whether the objectives of the Public Order (State Curfew) Order, 2020, outweighed the hardship visited on the populace by the curfew - Constitution of Kenya, 2010, article 26.

Constitutional Law – rights and fundamental freedoms – rights of arrested persons- right to fair hearing – whether Public Order (State Curfew) Order, 2020 affected the right to fair hearing and the rights of arrested persons by excluding advocates of the High Court from the list of services, personnel or workers exempted from the curfew order – whether advocates of the High Court ought to be included in the list of services, personnel or workers exempted from the operation of the curfew order – Constitution of Kenya, 2010, articles 49 and 50.

Constitutional Law – principles of constitutional law - separation of powers – separation of powers between arms of government – whether a court could direct the Cabinet Secretary for Health on how to exercise his power under section 36 of the Public Health Act by ordering him to include certain items in the Rules it made – whether the Cabinet Secretary for Health would be ordered to formulate guidelines for the implementation of the Public Order (State Curfew) Order, 2020 - Public Health Act, section 36.

Statutes  – interpretation of statutory provisions - curfew orders – curfew orders under the Public Order Act – form and content of a curfew order – requirement for a curfew order notice to specify the period of the curfew – whether failure to specify the period that the curfew would last in the notice declaring the curfew would render a curfew order illegal - Public Order Act, section 8.

Statutes – construction of statutes - Public Order Act - objectives of the Public Order Act - whether Public Order Act could be applied to other disasters and emergencies including containment of disease-  whether statutes could be used for a purpose for which it was not made – whether the Cabinet Secretary for Interior and Coordination of National Government exceeded his statutory power by invoking the Public Order Act to address a public health emergency.

Public Health Law – principles in public health - precautionary principle – justification for application of the precautionary principle – whether Cabinet Secretary for Interior and Coordination of National Government was justified in issuing the Public Order (State Curfew) Order, 2020 based on the precautionary principle - whether the use of a curfew order as a precaution to restrict the contact between persons was a legitimate action.

Civil Procedure and Practice – pleadings – function of pleadings – whether submissions amounted to pleadings – where submissions were made on an issue which was not pleaded in the pleadings – whether submissions could replace pleadings and activate matters not raised in the pleadings.

Brief facts:

The petitioner challenged the night curfew published  T under the Public Order Act (POA) (curfew order), imposed by Kenyan government as one of the measures meant to halt or slow the spread of the coronavirus (covid-19) in Kenya. The petitioner alleged, among others, that the curfew order was unconstitutional and illegal, that it did not comply with the provisions of section 8 of the POA by failing to provide the period of the curfew and that the POA was inapplicable to a public health emergency such as the covid-19 pandemic.

Issues:

1. Whether the Public Order (State Curfew) Order, 2020, was constitutional and legal.
2. Whether curfew orders under Public Order Act could only be issued for purposes of fighting crime and not disease.
3. What was the substance of constitutional test for determining the constitutionality of limitation of rights and fundamental freedoms?
4. Whether the Public Order (State Curfew) Order, 2020, met the constitutional test for limitation of rights and fundamental freedoms.
5. What were the parameters for establishing whether a limitation was reasonable and justifiable?
6. Whether unconstitutional and illegal acts that occur in the implementation of a legal instrument rendered that instrument unconstitutional.
7. Whether the National Police Service violated the Constitution in the enforcement of the Public Order (State Curfew) Order, 2020.
8. Whether submissions amounted to pleadings.
9. Whether advocates of the High Court ought to be included in the list of services, personnel or workers exempted from the operation of the Public Order (State Curfew) Order, 2020.
10. Whether the Public Order Act could be applied to other disasters and emergencies including containment of disease.

Relevant provisions of the Law

Constitution of Kenya, 2010;

Article 24;

(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––

 (a) the nature of the right or fundamental freedom;

 (b) the importance of the purpose of the limitation;

 (c) the nature and extent of the limitation;

 (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

 (e) the relation between the limitation and its purpose and whether there were less restrictive means to achieve the purpose.”

Public Health Act:

Section 8:

(1) The Cabinet Secretary, on the advice of the Inspector-General of the National Police Service may, if he considers it necessary in the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct that, within such area and during such hours as would be specified in the curfew order, every person, or, as the case would be, every member of any class of persons specified in the curfew order, shall, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew order, remain indoors in the premises at which he normally resides, or at such other premises as would be authorised by or under the curfew order.

 (2) (a) It shall be a condition of every permit granted under subsection (1) of that  section that the holder thereof shall at all times while acting under the authority thereof during the hours of darkness carry a light visible at a distance of twenty-five feet.

(b) Subject to paragraph (a) of that subsection, a permit under subsection (1) of that  section would be granted subject to such conditions, to be specified in the permit, as the authority or person granting it would think fit.

 (3) A curfew order shall be published in such manner as the authority making it would think sufficient to bring it to the notice of all persons affected thereby, and shall come into force on such day, being the day of or a day after the making thereof, as would be specified therein, and shall remain in force for the period specified therein or until earlier rescinded by the same authority or by the Minister as hereinafter provided:

 Provided that no curfew order which imposes a curfew operating during more than ten consecutive hours of daylight shall remain in force for more than three days, and no curfew order which imposes a curfew operating during any lesser number of consecutive hours of daylight shall remain in force for more than seven days.

 (4) Deleted by Act No. 19 of 2014, s. 4(b).

 (5) The variation or rescission of a curfew order shall be published in like manner as that provided in subsection (3) of that section for the publication of a curfew order.

 (6) Any person who contravenes any of the provisions of a curfew order or any of the terms or conditions of a permit granted to him under subsection (1) of that section shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.

(7) A certificate under the hand of the authority making, varying or rescinding a curfew order, specifying the terms, and the date and manner of publication, of such order, variation or rescission, shall be prima facie evidence thereof in all legal proceedings.

(8) Any person who, without lawful excuse, carries or has in his possession, in any area in which a curfew order was in force and during the hours during which the curfew imposed thereby was operative, any offensive weapon shall be guilty of an offence:

 Provided that no person shall be convicted of an offence under that section if he proves to the satisfaction of the Court that he carried or had in his possession the offensive weapon—

 (i) solely for domestic or defensive purposes within enclosed premises which he lawfully occupied or in which he was lawfully present; or

 (ii) with the authority of his employer and solely for domestic or defensive purposes within enclosed premises in the lawful occupation of his employer.

 [Act No. 53 of 1960, s. 6, L.N. 402/1963, L.N. 153/1965, Act No. 19 of 2014, s. 4.]”

Section 16:-

(1) Except as was specially provided in that Act, the provisions of that Act shall be deemed to be in addition to and not in substitution for any provisions of any other Act which are not in conflict or inconsistent with that Act.

(2) If the provisions of any earlier Act are in conflict or inconsistent with that Act, the provisions of that Act shall prevail.

Held:

1. The Public Order Act (POA) was an instrument for the enforcement of law and order. A curfew order was a tool for fighting crime. The underlying objective of a curfew was to enable security personnel to move into an area affected by criminal acts leading to public disorder, or such other acts that affected normal operations of the residents of the affected area. ThePOA was a law that was specifically tailored for combating criminal activities. Its purpose was to bring law and order to areas visited by turmoil that was generally caused by man.
2. The policy and objects of an Act had to be determined by construing the Act as a whole, and construction was always a matter of law for the court. In a matter of that kind, it was not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so used his discretion as to thwart or run counter to the policy and objects of the Act, then the law would be defective if persons aggrieved were not entitled to the protection of the court.An Act of Parliament could not be used for a purpose for which it was not made. There were statutes which could not, under whatever circumstances, be applied to any other situation other than what they were enacted for. However, some laws were multipurpose in nature. They fit all situations and could be invoked to address various circumstances.
3. The POA would be used to complement other laws. Section 16 of the Public Health Act (PHA) created room for the application of other laws to health matters, thus, it could not be said that POA was not applicable to health emergencies like the one posed by the covid-19 pandemic. It was possible that the provisions of the PHA would need to be supplemented by those of the POA.  Panic and fear could sometimes lead to disorder and a curfew would be needed to reinforce the provisions of the PHA. Acurfew order could be used to address a public health emergency. 
4. A curfew was heavy artillery that ought to be deployed with circumspection. Since it affected constitutional rights and fundamental freedoms, it ought to be premised on a substantive law. It was doubtful whether the Cabinet Secretary (CS) for Health could use the powers granted to him under section 36 of the PHA to declare a curfew.
5. A curfew did not only upset the people’s way of life, but it also negatively impacted constitutional rights and fundamental freedoms. Some of the rights limited by a curfew were the freedom of movement, the freedom of association, and the freedom of assembly. Even without the curfew, the insidious nature of covid-19 had suo moto robbed people of some aspects of the rights of association and assembly. Curfews also limited the hours for earning a living hence limiting socio-economic rights, especially for the vulnerable members of society. It was, therefore, important to identify the likely negative impacts of a curfew beforehand and put mitigation measures in place. It was also important for those empowered to impose curfews to swiftly lift them if the damage they caused to society far outweighed the benefits.
6. The 2^nd respondent did not exceed his statutory power by invoking section 8 of the POA to address a public health emergency. Whether the curfew met the constitutional threshold was another issue altogether. Thus, the 2^nd respondent did not err in issuing the curfew order to address the covid-19 crisis.
7. The curfew order notice did not comply with the requirements of section 8 of the POA. The period of the curfew was not specified. It breached section 8(3) of the POA which, inter alia, stated that a curfew order remained in force for the period specified therein.The period that the curfew would last ought to be specified in the instrument declaring the curfew. Failure to do so would render a curfew order illegal. In that, a curfew order could not last forever. An instrument that restricted rights and freedoms ought to be clear as to how long the limitation would last. The second defect in the notice was that it did not, as required by section 8(1) of the POA, specify the authority or person to grant written permit for persons who for good reason could not remain indoors during the curfew hours.
8. A perusal of the document produced by the Government Printer showed that it conformed to the provisions of section 8 of the POA. The curfew imposed by the 2^nd respondent could last for 30 days from March 27, 2020. The petitioner’s argument that the curfew order was unlawful for failing to state the period of the curfew and the authority or person to provide permits, thus, failed. 
9. The curfew order was of itself a legal instrument which had to independently pass the test in article 24 (1) of the Constitution. The substance of the constitutional test for a constitutional provision was a four (4) step test which ought to be done in all cases when it was necessary to confirm whether one was dealing with a constitutional limitation of freedoms or rights or such a limitation was unconstitutional. The test in question was not cumulative. That meant that in all instances where the condition or the first step of the test was not passed, the constitutional analysis ended there and it was not necessary to analyze the applicability of three, two, or another remaining step of the test.
10. Immediately after determining whether one was dealing with a limitation of a freedom or right, namely whether it was interference with a freedom or right, which had to be determined in each case, the following four (4) non-cumulative questions had to be given to the constitutional provision, thus:

1. Was the limitation of a right or freedom guaranteed by the Constitution prescribed by law? If the answer was negative, then the constitutional analysis ended there, as no limitation of the rights and freedoms guaranteed by the Constitution could be done otherwise than by law of the Assembly and to the extent permitted by law, always under the presumption that the latter was in accordance with the Constitution. If the answer was affirmative, then it was moved on the second question of the test because the requirement that the limitation was made by law or that the limitation was prescribed by law of the Assembly was met.
2. Had the limitation of a certain right or freedom followed a legitimate aim, namely through the limitation in question, was the purpose for which the limitation was permitted fulfilled? If the answer was negative, then the constitutional analysis ended there, as no limitation of the rights and freedoms guaranteed by the Constitution could be done without determining and legitimizing the legitimate aim of such a limitation and without fulfilling the purpose for which the limitation was made. If the answer was affirmative, that was, the test of legitimate aim was passed, then it was moved on the third question of the test.
3. Was the limitation of a certain right or freedom proportional, namely was the limitation made only to the extent necessary? If the answer was negative, then the constitutional analysis ended there - as no limitation of the rights and freedoms guaranteed by the Constitution could be made beyond the extent of necessity and proportionality. If the answer was affirmative, then the proportionality/necessity test was passed, then it was moved on the fourth and final question of the four-step test.
4. Was the limitation made necessary in an open and democratic society? Regardless of whether the answer to that question was negative or affirmative, the constitutional analysis ended there. If the answer was negative, then it meant that the limitation of that right or freedom was not constitutional because no limitation could be made if it was not necessary in an open and democratic society. If the answer was affirmative, that was, the test was passed, then it was considered that the limitation made was constitutional because all four steps of the test were affirmatively fulfilled.

11. In summary, the test stipulated that the limitation of a right or freedom would be done only by law of the Assembly, there ought to be a legitimate aim, it should be necessary and proportional and it should be necessary in a democratic society.
12. The curfew order could only be deemed constitutional if it passed the article 24(1) of the Constitution test. Curfew order limited various constitutional rights and fundamental freedoms.  In enacting a legal instrument that limited rights, the state was required to ensure that the instrument was backed by law. The limitation ought to be to the extent that was reasonable and justifiable in an open and democratic society.
13. Some of the parameters for establishing whether a limitation was reasonable and justifiable were the need to ensure that the instrument preserved human dignity. The instrument had to, as much as possible ensure equality and freedom. Other factors to be considered were the nature of the right or fundamental freedom that was limited. Among the questions to be asked and answered were: What was the purpose of the limitation? How important was it? What was its nature and extent? Was the limitation meant to ensure that the enjoyment of rights and fundamental freedoms by an individual did not prejudice the rights and fundamental freedoms of others? Was there a less restrictive means for achieving the purpose of the limitation?
14. The curfew order was backed by law. It applied to each and every person in the Republic of Kenya except those who offer essential services. The measures imposed were aimed at the containment of a novel infectious disease with no known cure or vaccine. Evidence from other countries showed that some of those who have been infected by the disease have died as a result of the infection. The World Health Organisation (WHO) had declared the disease a pandemic. The disease was, therefore, a threat to life which was a fundamental right protected by article 26(1) of the Constitution.
15. The challenge with the application of the proportionality test in the instant case was that the objective the curfew order intended to achieve was unmeasurable. Though it was said that its main objective was to reduce transmission of coronavirus, no evidence was adduced to show how the curfew would achieve that objective and whether the reduced transmissions, if any, outweighed the hardship visited on the populace by the curfew. It was appreciated that because of the novelty of the virus, statistics were not yet available. The 1^st, 2^nd, 3^rd and 5^th respondents did not explain the rationale for imposing the curfew from 7.00pm to 5.00am. On the other hand, the petitioner failed to convince the court that it had to interfere with the discretion of the 2^nd respondent in fixing the hours of the curfew.
16. In a crisis like the one facing the country, it could be presumed that the 2^nd respondent issued the curfew order in line with the precautionary principle. Precautionary principle was designed to prevent potential risks. It was the duty of the state to take protective measures without having to wait until the reality and seriousness of those risks were fully demonstrated or manifested. That approach took into account the actual risk to public health, especially where there was uncertainty as to the existence or extent of risks to the health of consumers. The state would take protective measures without having to wait until the reality and the seriousness of those risks were apparent.
17. At the core of the precautionary principle were many of the attributes of public health practice including a focus on primary prevention and a recognition that unforeseen and unwanted consequences of human activities were not unusual.
18. , Where, in matters of public health, it proved impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persisted should the risk materialise, the precautionary principle justified the adoption of restrictive measures, provided they were non-discriminatory and objective.
19. The government could not be faulted for enforcing precautionary and restrictive measures in order to slow the spread of a novel disease in line with the precautionary principle. The use of a curfew order to restrict the contact between persons as advised by the Ministry of Health was a legitimate action. The 2^nd respondent had ameliorated the effects of the curfew by changing the working hours in order to make it possible for the workers to comply with the curfew.
20. Although the curfew order met the constitutional and statutory parameters, there was a strong case for the retooling and remodellingof the legal instrument so that it could achieve its objectives with reduced impacts on the rights and fundamental freedoms of Kenyans.
21. IThe curfew was imposed for a public health purpose. The curfew was not meant to fight crime or disorder. It was questionable why issuance of permits under the curfew order was solely reserved to police officers. It was better if a person in need of emergency care sought authority from a medical officer, the village elder, nyumbakumi, the local administrator or even the Member of the County Assembly. In order for the curfew order to achieve its objectives and to be embraced by the public, it ought not be seen as a tool of force but something that aimed to protect the health of the people.
22. The main problem with the curfew order was the manner in which it had been implemented. However,  unconstitutional and illegal acts that occur in the implementation of a legal instrument did not render that instrument unconstitutional. The problems that would arise from the implementation should be addressed separately.
23. Newspaper stories which were not backed by the sources quoted or the authors of the articles were of no probative value in a court case. Nevertheless, a perusal of the pleadings showed that there was more to the petitioner’s case than the newspaper cuttings. There was a post-mortem report of one person showing that the cause of death was haemorrhagic shock due to multiple perforations on the gut secondary to blunt abdominal trauma. Also, there was an averment to the attack of an individual at the Likoni Ferry Channel in Mombasa and the killing of a 13 year old boy in Mathare within Nairobi City County. Those incidents were sufficient, on a balance of probabilities, to prove the petitioner’s case that the police killed and brutalised the people of Kenya in the process of enforcing the curfew order. There was also evidence on record that the people of Mombasa were attacked by the law enforcement officers prior to the time for the commencement of the curfew.
24. In confronting covid-19, which was by all means a faceless enemy, the police brought the law and order mentality to the fore. Diseases were not contained by visiting violence on members of the public. One could not suppress or contain a virus by beating up people. The National Police Service had to be held responsible and accountable for violating the rights to life and dignity among other rights.
25. A case had not been made for the issuance of a declaration holding the 1^st respondent personally liable for the unreasonable use of force in the enforcement of the curfew order. No evidence had been adduced to directly link the 1^strespondent to the violation of rights and fundamental freedoms by individual police officers.
26. The 1^st respondent would not be ordered to formulate guidelines for the implementation of the curfew order since guidelines for police operations were already established by law and there was no reason for issuing special guidelines for that particular operation. There were specific guidelines on police operations. There were even rules on how deaths and injuries that occur during police operations should be treated. The challenge appeared to be the implementation of the law already in place. Directing that other regulations be formulated and issued on top of what was already in place could not solve the underlying problem. The answer to that problem did not lie in the instant petition. 
27.  It was not in the province of the court to direct the 5^th respondent on how to exercise his power under section 36 of the Public Health Act, hence it would not order him to include certain items in the Rules. It was in doubt if rules could be made in such a manner as to contain information on the procurements already done in preparation for the covid-19 pandemic. If the petitioner desired to have certain information from the 5^th respondent, then it had to follow the applicable law in seeking to access such information.
28. Even though the petitioner submitted at length on the alleged abdication of judicial authority by the Kenyan judiciary, it did not make any averments to that effect in the pleadings. There was no statement in the pleadings that the various constitutional provisions cited had been violated and the nature of the violation. There was no mention of the 4^th respondent and no alleged dereliction of duty by him. The 4^th respondent was only mentioned in the reliefs sought. The basis upon which the reliefs were sought against the 4^th respondent was therefore not established in the petitioner’s pleadings.
29. The function of a pleading in civil proceedings was to alert the other party to the case they needed to meet and hence satisfy basic requirements of procedural fairness and further, to define the precise issues for determination so that the court would conduct a fair trial. The cardinal rule was that a pleading had to state all the material facts to establish a reasonable cause of action or defence. The expression material facts was not synonymous with providing all the circumstances. Material facts were only those relied on to establish the essential elements of the cause of action. A pleading should not be so prolix that the opposite party was unable to ascertain with precision the causes of action and the material facts that were alleged against it. A petition that did not disclose a case had to fail. Parties were bound by their pleadings and any case constructed outside the pleadings could not be the subject of the court’s determination.
30. The submissions made by the parties on the issue of the alleged abdication of constitutional duty by the judiciary could not assist the petitioner. Submissions could not take the place of evidence. Submissions could not replace pleadings and could not activate matters not raised in the pleadings. Thus, no case was pleaded or proved by the petitioner on the alleged abdication of constitutional mandate by the judiciary.
31. Curfew order had not closed courts. The curfew did not affect the right to fair hearing under article 50 of the Constitution. However, the work of advocates was not limited to court work. They also attended to persons arrested by the police. Therefore, petitioner’s members ought to have been exempted from the operations of the curfew order so that they could assist in the protection of the rights guaranteed by article 49 of the Constitution whenever called upon to do so. The petitioner’s concern becomes more important when the manner in which the curfew had been enforced was taken into account.
32. In time of crisis, the state tended to overreach itself. The Constitution and the law had not been suspended. It was only a few rights and fundamental freedoms that had been restricted by the operation of the curfew order. Those rights did not include the non-derogable rights under article 25 of the Constitution. It was necessary for defenders and upholders of the rule of law to be extra vigilant whenever the state exercised emergency powers.
33. A strong case had been established for the policing of the security personnel. In that regard, an order issued exempting the police of the police service (IPOA) from the operations of the curfew order.
34. The role of the media in informing the public on the effects of the covid-19 pandemic and the actions of the state in addressing the pandemic could not be gainsaid. The 2^nd respondent recognised that fact and had indeed exempted licensed broadcasters and media houses from the operations of the curfew. The National Police Service had to take cue and allow the media to do its work. There was no need to issue a specific order in respect of the operations of the media considering the fact that they had been allowed to operate during the curfew hours.
35. There was no explanation given by the petitioner as to why the 1^st and 2^nd respondents were to be ordered to pay costs. There was therefore no merit in the request to isolate and punish the 1^st and 2^nd respondents with an order of costs. It was a time to stand together and face a common enemy in the fight for our survival. Each one had to be engaged in that fight. Although the petition sought to protect and promote public interest, there was no evidence on record that the petitioner attempted to reach out to the respondents with a proposal to rectify the curfew order before filing the petition. Thus, each party to meet own costs of the proceedings.

Petition partially allowed.

Orders:

1. A declaration issued that the 1^st respondent’s unreasonable use of force in enforcing the Public Order (State Curfew) Order, 2020 was unconstitutional.
2. An order of mandamus issued compelling the 2^nd respondent to amend, within five days from the date of the judgement, the schedule to the Public Order (State Curfew) Order, 2020 so as to include the 3^rd interested party (IPOA) and the members of the petitioner in the list of services, personnel or workers exempted from the provisions of the Public Order (State Curfew) Order, 2020.
3. Each party ordered to meet own costs of the proceedings.

Texts /Journals

 De Schutter, D., (Eds) (2019)  ‘International Human Rights Law London: Cambridge Unversity Press 3rd Edn p 518

Cases

East Africa

1.    Centre for Human Right and Democracy & 2 others v the Judges and Magistrates Vetting Board & 2 others [2012] 3 KLR 720-(Explained)

2.    Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others Civil Appeal 219 of 2013;[2014] eKLR –(Mentioned)

3.    Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others Civil Appeal 219 of 2013;[2014] eKLR- (Followed)

4.    Katiba Institute & another v Attorney General & another [2017] eKLR; Transparency International (TI Kenya) v Attorney General & 2 others [2018] eKLR-(Mentioned)

5.     Kenya Pharmaceutical Association & another v Nairobi City County and 46 other County Governments & another Constitutionnal Petition 97 of 2016;[2017] eKLR –(Followed)

6.    Law Society of Kenya v Inspector General Kenya National Police Service & 3 others Petition 9 of 2014;[2015] eKLR-(Explained)

7.     Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] 3 KLR 199-(Mentioned)

8.    Maren, Born Bob v Speaker Narok County Assembly & 3 others Petition 1 of 2014; [2015] eKLR –(Explained)

9.    Matemu, Mumo v Trusted Society of Human Rights Alliance & 5 others Civil Appeal 290 of 2012; [2013] eKLR-(Followed)

10. MN (suing as the mother and the next friend of CW) v Director of Public Prosecutions; Geoffrey Werumbe (Interested Party) Petition 25 of 2014;[2019] eKLR –(Explained)

11. Moi. Daniel Toroitich Arap v Mwangi Stephen Muriithi & another Civil Appeal 240 of 2011;[2014] eKLR-(Followed)

12. Munya v Kithinji & 2 others [2014] 3 KLR 36- (Explained)

13. Muslims for Human Rights (MUHURI) & 4 others v Inspector General of Police & 2 others Petition 62 of 2014; [2014] eKLR –(Explained)

14. National Super Alliance (NASA) Kenya v Cabinet Secretary for Interior and Co-ordination of National Government, Inspector General of Police & 2 others Voi HC

15. Republic v Chairman Amagoro Land Disputes Tribunal & another ex-parte Paul Mafwabi Wanyama [2014] eKLR-(Followed)

16. Republic v Ministry & 3 others ex-parte Kennedy Amdany Langat & 27 others Judicial Review Case 2 of 2018 & 709 of 2017(Consolidated) [2018] eKLR –(Followed)

17. Sakwa, Michael Osundwa v Chief Justice and President of the Supreme Court of Kenya & another Petition 167 of 2016;[2016] eKLR –(Explained)

18.Shamalla, Jennifer v Law Society of Kenya, Interested Party Independent Electoral & Boundaries  Petition 85 of 2016;[2016]eKLR–(Followed)

19. St Patrick Hill School Ltd v National Hospital Insurance Fund Petition 424 of 2018;[2019] eKLR-(Explained)

Malawi

The State (on application of Lin Xiaoxiao, Liu Zhigin, Wang Xia, Tian Hongze, Huang Xinwang, Zheng Zhouyou, Zheng Yourong, Jia Huaxing, Lin Shiling and Lin Tingrong) v the Director General Judicial Review Cause No 19 of 2020- (Explained)

Kosovo

 President of the Republic of Kosovo (Applicant)-Constitutional Review of the Decision No [Government] 15/01, 23 March 2020] Case No KO54/2020 –(Explained)

United Kingdom

1.    Council for Civil Service Unions v Minister for Civil Service [1985] AC 374 –(Explained)

2.     Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1 –(Followed)

3.    R v Secretary of State for Foreign and Commonwealth Affairs ex-parte World Development Movement Ltd [1994] EWHC Admin 1-(Explained)

Statutes

East Africa

1.    Consitution of Kenya, 2010 articles 2(6); 10; 21(1); 23; 24; 26(1); 28; 29; 37; 39(1); 43; 49; 50(1); 58(1)(7); 59(1)(d); 87; 238(1)(2); 159; 244; 249(1)(b)(c)-(Interpreted)

2.     Independent Policing Oversight Authority Act, 2011 (Act No 35 of 2011) – Ingeneral (Cited)

3.    Law Society Act, 2014 (Act No 21 of 2014) sections 3, 4 –(Interpreted)

4.    National Police Service Act, 2011 (Act No 30 of 2011) sections 10(1) ;49;59;61-(Interpreted)

5.     Public Health Act (cap 242) sections 18, 36 –(Interpreted)

6.    Public Order Act (cap 56) section 8 – (Interpreted)

7.    Value Added Tax Act,2013(Act No 35 of 2013) –In general (Interpreted)

International Instrument

1. International Covenant on Civil and Political Rights (“ICCPR”) 1966  article 4(1)

2. International Covenant on Economic, Social and Cultural Rights, (ICESCR) 1966

Advocates

None Mentioned