Haki Na Sheria Initiative v Inspector of Police & 3 others (Civil Appeal 261 of 2018) [2020] KECA 566 (KLR)
The bottom line
#Kenya's Court of Appeal upheld police curfew powers under the Public Order Act, ruling they are a constitutional limit on rights when public safety demands it.
What this practically means
#Executive summary
#Key legal issues
#Pleading standard in constitutional petitions
The appellant set out its case to the required standard; the Anarita Karimi Njeru precision principle must not be applied in a creeping formalistic way.
The amended petition identified the specific constitutional provisions allegedly violated. Relying on Mumo Matemu and Mohammed Fugicha, the Court held that precision is not exactitude and that the 2010 Constitution does not lionize form over substance. Considered as a whole, the petition left no doubt as to the complaints and the provisions said to be contravened.
Whether the learned Judge considered the appellant's submissions
This ground failed; the record showed the Judge laid down and considered the appellant's submissions.
From the record, the learned Judge succinctly set out the appellant's submissions and considered them in the impugned judgment. A court exercising judicial discretion is guided by established principles and precedent, not whim and caprice, and the ground of appeal alleging failure to consider submissions could not be sustained on the material before the Court.
Constitutionality of Sections 8 & 9 of the Public Order Act
The sections are constitutional; their purpose and effect were justifiable in the circumstances.
Applying the presumption of constitutionality and the purpose-and-effect test, the Court found the Act's objective is maintenance of public order, a legitimate purpose. The powers are not unchecked: curfews are limited by hours and duration, subject to variation or rescission, and subject to judicial oversight like a state of emergency. Nothing in the Constitution prohibits curfew orders.
Whether the limitation was acceptable under Article 24
The limitation was reasonable and justifiable in an open and democratic society; the curfew was a proportionate means of achieving public order.
Applying the Article 24 reasonable-and-justifiable test and proportionality factors, the Court found the curfew restricted movement and affected worship, but the limitation served the legitimate purpose of safety, peace and national security following the Garissa University attack, and applied to all residents rather than a prohibited class. Rights under Articles 26 and 29 were not demonstrated to be infringed.
Whether Sections 8 & 9 discriminate contrary to Article 27
No prohibited discrimination was established; the impugned provisions were not based on grounds prohibited by Article 27(4).
Adopting the three-stage enquiry from Mohammed Abduba Dida, the Court found differentiation arising from curfews on a class of persons has a rational connection to the legitimate purpose of public order. The appellant neither established that the differentiation was on a prohibited ground nor that it was unfair, so no violation of Article 27 arose.
Legal principles established
#- A person alleging contravention of a constitutional right must set out the right infringed and particulars of the infringement with reasonable precision, though precision is not exactitude and the Constitution does not lionize form over substance.
- There is a rebuttable presumption of constitutionality of legislation, and the burden of rebutting it rests on the party challenging the legislation.
- In determining constitutionality, a court must consider both the purpose and the effect of the impugned provision; if either infringes a guaranteed right, the provision must be declared unconstitutional.
- Mere differentiation or unequal treatment does not per se amount to prohibited discrimination under Article 27; differentiation must be shown to be unreasonable, arbitrary, or on a prohibited ground.
- Limitation of rights under Sections 8 & 9 of the Public Order Act in circumstances of threatened public order due to terror attacks or criminal insecurity is a justifiable, reasonable and necessary limitation under Article 24.
Court orders
#- 1.Appeal dismissed
- 2.High Court's finding that Sections 8 & 9 of the Public Order Act are constitutional upheld
- 3.Each party to bear their own costs
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court exercising constitutional (petition) jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haki Na Sheria Initiative v Inspector of Police & 3 others (Civil Appeal 261 of 2018) [2020] KECA 566 (KLR)", Case Analysis (2020). Civil Appeal No 261 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/566/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.