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Supreme CourtDismissedPetition 5 (E007) of 2021

Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party)

Supreme Court of Kenya
3 December 2021
Mohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
4,066 words in judgment
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AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Supreme Court rejects curfew challenge because the issue was not raised in lower courts first.

What this practically means

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A group called Haki na Sheria Initiative tried to stop the government from enforcing a Covid-19 curfew. They argued the law allowing curfews is unconstitutional. But the Supreme Court said no. The court explained that the Covid-19 curfew was a different situation from the 2015 terror attack curfew that had been challenged in lower courts. The group had not raised the Covid-19 curfew issue in the High Court or Court of Appeal before coming to the Supreme Court. So the court dismissed their application.

Executive summary

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This was an application for conservatory orders filed by Haki na Sheria Initiative in a pending appeal before the Supreme Court. The appeal challenged the constitutionality of sections 8 and 9 of the Public Order Act, which empower the Cabinet Secretary to impose curfews. The original dispute arose from a curfew imposed after the 2015 Garissa University terrorist attack. The High Court and Court of Appeal had both upheld the curfew and the constitutionality of the impugned sections. While the appeal was pending, the Government invoked the same sections to impose a nationwide curfew to combat the Covid-19 pandemic. The applicant sought conservatory orders to restrain the respondents from enforcing the Covid-19 curfew. The Supreme Court dismissed the application. The court noted that the facts underlying the 2015 curfew (security concerns) and the 2020 curfew (public health emergency) were fundamentally different. Crucially, the legality and constitutionality of the 2020 curfew orders had never been raised or determined by the High Court or Court of Appeal. The court held that it would be 'greatly dishonest' for the applicant to introduce this new aspect on final appeal without having first litigated it in the lower courts. The court reaffirmed the principle that under Article 163(4)(a), constitutional issues must first be raised and determined in the High Court and Court of Appeal before they can be brought to the Supreme Court. The application was dismissed with costs to abide the outcome of the main appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application meets the threshold for granting conservatory orders as set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others

Key legal issues

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01

Whether the Supreme Court can entertain a constitutional issue on appeal that was not raised or determined by the High Court and Court of Appeal.

Holding

The Supreme Court cannot entertain a constitutional issue that was not first raised and determined by the High Court and Court of Appeal. The court recognized and respects the constitutional competence of courts in the judicial hierarchy to resolve matters before them.

Reasoning

The Supreme Court noted that the underlying challenge to sections 8 and 9 of the Public Order Act was the same, but the facts giving rise to the 2015 curfew (security concerns) and the 2020 curfew (public health emergency) were different. The 2020 curfew orders were never challenged in the High Court or Court of Appeal. The court held that it would be 'greatly dishonest' for the applicant to introduce this new aspect on final appeal without having argued it before the lower courts. The court relied on the principle from Peter Oduor Ngoge v Francis Ole Kaparo that the chain of courts has competence to resolve all matters, and only cardinal issues of law deserve the Supreme Court's input.

p. 15
02

Whether the application for conservatory orders met the threshold for grant.

Holding

The application did not meet the threshold because the facts underlying the conservatory orders (Covid-19 curfew) were different from those in the pending appeal (2015 terror attack curfew), and the constitutional issue regarding the 2020 curfew had not been litigated in the lower courts.

Reasoning

The court applied the three-part test from Gatirau Peter Munya: (1) arguable appeal, (2) nugatory aspect, and (3) public interest. However, before applying the test, the court noted a fundamental issue: the 2015 curfew was based on security concerns, while the 2020 curfew was based on a public health emergency. The applicant sought to challenge the 2020 curfew without having first raised the issue in the High Court and Court of Appeal. The court found this procedurally improper and declined to grant the orders.

p. 15

Legal principles established

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  • Constitutional issues must be raised and decided in the High Court and Court of Appeal before the Supreme Court can hear them.
  • The Supreme Court will not allow a party to introduce a new constitutional issue on appeal that was not argued in lower courts.
  • Different factual circumstances (e.g., security vs. public health) create separate legal challenges that must be litigated separately.
  • The judicial hierarchy has competence to resolve all matters; only cardinal issues of law deserve Supreme Court input.
  • It is procedurally improper to seek conservatory orders based on facts not part of the pending appeal.
  • The Gatirau Peter Munya test for conservatory orders requires an arguable appeal, nugatory aspect, and public interest, but procedural bars can override it.

Court orders

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  1. 1.The notice of motion dated July 12, 2021 is dismissed.
  2. 2.Costs will abide the outcome of the appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Civil Appeal No 261 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Conservatory orders restraining the respondents from declaring, publishing and enforcing curfew order pursuant to section 8 of the Public Order Act

The facts giving rise to the 2020 curfew orders (Covid-19 pandemic) were never argued before the High Court or Court of Appeal, and it would be dishonest to introduce this new aspect on final appeal before the Supreme Court.

p. 15

Costs

Costs will abide the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We think it, greatly dishonest for the applicant to seek to introduce this new aspect when on final appeal before this court. More so without having argued it before both the High Court and Court of Appeal.
p. 15 Appellate jurisdiction - requirement that constitutional issues be raised in lower courts first
Costs will abide the outcome of the appeal.
p. 15 Costs order
The court has settled that for an appeal to lie to the Supreme Court from the Court of Appeal under Article 163(4)(a), the constitutional issue must have first been in issue at both the High Court and then the Court of Appeal for determination.
p. 14 Supreme Court appellate jurisdiction under Article 163(4)(a)

Key timeline

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2015-04
Government imposes curfew after Garissa University terrorist attack using sections 8 and 9 of the Public Order Act.
2015-2020
Haki na Sheria Initiative challenges the curfew and the law in the High Court and Court of Appeal. Both courts uphold the curfew and the law.
2020-03
Government imposes a nationwide curfew to combat Covid-19 using the same sections of the Public Order Act.
2021-07-12
Haki na Sheria Initiative files a notice of motion in the Supreme Court seeking conservatory orders to stop the Covid-19 curfew, while their appeal on the 2015 curfew is pending.
2021 (after July 12)
Supreme Court dismisses the application, ruling that the Covid-19 curfew issue was not raised in lower courts and cannot be introduced on appeal.

Practical implications

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For lawyers

Raise all issues in lower courts

When planning an appeal to the Supreme Court under Article 163(4)(a), ensure every constitutional issue you intend to argue was first raised and determined by the High Court and Court of Appeal. You cannot introduce new aspects or factual contexts at the final appeal stage. The court will dismiss such attempts as procedurally improper, even if the underlying law is the same.

For businesses

Curfew challenges require fresh litigation

If the government imposes a curfew or similar restriction under a law that has been previously challenged, you cannot rely on that earlier challenge to block a new curfew based on different facts (e.g., security vs. health emergency). You must file a fresh case in the High Court to challenge the new curfew, arguing the specific circumstances. The Supreme Court will not allow you to piggyback on an old appeal.

For individuals

Start with the High Court to challenge orders

If you believe a government order like a curfew violates your rights, do not go straight to the Supreme Court. You must first file a case in the High Court. That is where the factual and legal issues will be decided. Only after a decision from the High Court and then the Court of Appeal can you ask the Supreme Court to review the constitutional question. Skipping steps will get your case dismissed.

Frequently asked questions

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Can the Kenyan Supreme Court hear a new issue that was not raised in the lower courts?+

No. The Supreme Court has ruled that under Article 163(4)(a) of the Constitution, a constitutional issue must first be raised and determined by the High Court and Court of Appeal. The court cannot entertain a new issue on final appeal, as doing so would be 'greatly dishonest' and bypass the judicial hierarchy.

What is the Public Order Act in Kenya and how does it allow curfews?+

The Public Order Act, sections 8 and 9, gives the Cabinet Secretary power to impose curfews to maintain public order. This law was used to impose a curfew after the 2015 Garissa terror attack and later for the Covid-19 pandemic. The Supreme Court has upheld its constitutionality, but each curfew must be challenged separately based on its specific facts.

How do I challenge a curfew or government order in Kenya?+

You must file a petition in the High Court first. The High Court will hear evidence and arguments about the specific curfew. If you lose, you can appeal to the Court of Appeal. Only after that can you ask the Supreme Court to hear a pure constitutional question. You cannot skip the lower courts.

What happened in the Haki na Sheria Initiative case against the Inspector General of Police?+

Haki na Sheria Initiative tried to stop the Covid-19 curfew by asking the Supreme Court for conservatory orders. The court dismissed the application because the group had not challenged the Covid-19 curfew in the High Court or Court of Appeal. The court said it was dishonest to introduce a new issue at the final appeal stage.

Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Haki Na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party)", Case Analysis (2021). Petition 5 (E007) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/22/eng@2021-12-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.