Media Analysis and Research Services Ltd v Kenya Commercial Bank Ltd
The bottom line
#Kenya's High Court ruled that constitutional rights cannot be enforced against private companies like banks, dismissed the application for emergency orders, and required ordinary civil remedies to be used first.
What this practically means
#Executive summary
#Key legal issues
#Vertical application of the Bill of Rights - enforceability against a private body corporate
Fundamental rights under Sections 70(c) and 77(9) are enforceable only against the State; KCB, being a private body corporate, cannot guarantee or be sued for the petitioner's fundamental rights.
The court adopted the reasoning of Nyamu J in Kenya Bus Services Ltd v AG and, through it, Maxwell CJ in Teitiwnnang v Ariong: the Constitution is an instrument of government whose fundamental rights provisions impose duties on the Government of the day toward the governed, while relations between private persons are regulated by private law. As the respondent is a bank, a body corporate, it cannot guarantee the applicant's rights, and no petition for breach of fundamental rights can be maintained against it.
Non-absolute nature of fundamental rights and the Section 75(6) limitations
Rights under Section 70 are not absolute; the applicant bore the burden of showing that execution on the decree did not fall within the Section 75(6) limitations.
Section 70 makes fundamental rights subject to respect for the rights and freedoms of others and the public interest. Because the complaint concerned property exposed to execution, the burden lay on the applicant to show the execution did not fall within the limitations of Section 75(6), notably 75(6)(iv). A decree existed in the bank's favour in HCC 100/04, and the applicant adduced nothing bringing his position outside those limitations.
Exhaustion of alternative remedies under Order 21 before invoking constitutional jurisdiction
A party aggrieved by execution or by a ruling in objection proceedings must exhaust or show the unsuitability of Order 21 remedies, including appeal or review, before moving the constitutional court.
Order 21 of the Civil Procedure Rules contains an elaborate procedure on execution, within which objection proceedings provide a remedy. A party aggrieved by execution or by a ruling in objection proceedings must first exhaust those statutory avenues, including appeal or review, or demonstrate their unsuitability, before invoking the constitutional jurisdiction. The applicant demonstrated neither, so the petition could not be used as a shortcut around the statutory scheme.
Jurisdiction - constitutional court cannot sit on appeal over a High Court decision
Asking the constitutional court to reach a different finding from the High Court's ruling in the objection proceedings would be sitting on appeal, which is outside its jurisdiction; appeals lie only to the Court of Appeal.
The High Court in the objection proceedings had found the objector and the 2nd respondent to be husband and wife, which defeated the objection. Inviting this court to reach a different finding would amount to sitting on appeal over a decision of a court of concurrent jurisdiction, which Section 84 does not permit; an appeal lies only to the Court of Appeal. The constitutional jurisdiction cannot be deployed as a substitute for appellate review of interlocutory rulings.
Threshold for conservatory orders
The applicant failed to establish a prima facie case with good chances of success or irreparable harm, so no conservatory orders could issue at that stage.
Applying the conventional interim criteria, the court held the applicant had shown neither a prima facie case with good chances of success nor irreparable harm if conservatory orders were refused. Given the bar against enforcing fundamental rights against a private body corporate, the existence of a decree, and the unexhausted Order 21 remedies, no basis existed for interim relief; costs were made to abide the petition, leaving the substantive petition pending.
Legal principles established
#- Fundamental rights and freedoms under the Constitution are guaranteed by the State and are enforceable only against the State, not against private individuals or bodies corporate.
- Duties under the fundamental rights provisions are owed by the Government to the governed; relations between private persons are governed by private law and no constitutional declaration lies between private individuals.
- A party must demonstrate that statutory remedies such as appeal or review under Order 21 are exhausted or unsuitable before invoking the constitutional jurisdiction.
- A constitutional petition cannot be used to overturn a decision of a court of concurrent jurisdiction; an appeal lies only to the Court of Appeal.
- Conservatory (interim) relief requires a prima facie case with good chances of success and proof of irreparable harm if the order is withheld.
Court orders
#- 1.No conservatory orders to issue at this stage.
- 2.The Chamber Summons dated 15th July 2009 is dismissed.
- 3.Costs of the application to abide the petition.
- Jurisdiction invoked
- Section 84(1) of the Constitution of Kenya (former Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Media Analysis and Research Services Ltd v Kenya Commercial Bank Ltd", Case Analysis (2009). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.