Law Society of Kenya v Hillary Mutyambai, Inspector General National Police Service & 4 others
The bottom line
#The court ruled that while the COVID-19 curfew was legal, police brutality during its enforcement was unconstitutional.
What this practically means
#Executive summary
#Key legal issues
#Whether the Curfew Order could lawfully be issued under Section 8 of the Public Order Act for a public health emergency
The court held the POA is not confined to crime; it may complement the PHA, so the 2nd Respondent did not exceed his statutory power
The court accepted that a curfew is a crime-fighting tool per the Lamu Curfew and MUHURI cases, but noted those cases did not consider other emergencies. Section 16 of the PHA provides that its provisions are in addition to, not in substitution for, other Acts. Panic and fear can cause disorder, so a curfew may reinforce the PHA. The court doubted whether the Health CS could declare a curfew under Section 36 of the PHA.
Whether the text of the Curfew Order complied with Section 8 of the POA and Article 24
The court relied on the Government Printer's version, which specified a 30-day period and a permit authority, and found it compliant; the Petitioner's version failed but was not the operative instrument
Section 8(3) requires a curfew order to remain in force for the period specified therein; an indefinite curfew would be illegal. The respondents bound themselves to the Government Printer's version, which specified 30 days from 27th March 2020 and named police officers who could grant written permits. The court declined to inquire which version was published first.
Whether the Curfew Order passed the Article 24 limitation test
The Order was backed by law, pursued the legitimate aim of containing a deadly pandemic, and was proportionate; no less restrictive alternative was demonstrated
The court applied the Article 24 factors, aided by the Kosovo four-step test. The disease threatened the right to life under Article 26(1). Neither side adduced evidence on transmission outcomes, but the precautionary principle justified restrictive measures amid scientific uncertainty. The court noted the respondents did not explain the choice of 7pm-5am hours but declined to interfere with the CS's discretion.
Whether police violated the Constitution in enforcing the curfew
Yes - on a balance of probabilities the police killed and brutalised members of the public, violating rights to life and dignity; the unreasonable use of force was declared unconstitutional
Newspaper cuttings alone had no probative value per the IEBC v NASA case, but the affidavit evidence of KNCHR (post-mortem of Hamisi Juma Iddi) and FIDA-Kenya (Khadija Hussein, Yassin Moyo) sufficed on a balance of probabilities. The court held the National Police Service responsible and accountable, though no personal liability attached to the IG.
Whether advocates and IPOA should be exempted from the curfew
Yes - advocates' work extends to attending arrested persons, protecting Article 49 rights; IPOA's oversight role justified exemption
The court found merit in exempting the Petitioner's members so they could assist arrested persons, especially given the brutal enforcement. It also found a strong case for 'policing the security personnel' and ordered mandamus to amend the Schedule to include IPOA and LSK members within five days.
Legal principles established
#- A curfew order limiting rights must specify the period it will remain in force; failure to do so renders it illegal
- The Public Order Act may be applied to a public health emergency to complement the Public Health Act
- Unconstitutional or illegal acts in the implementation of a legal instrument do not render the instrument itself unconstitutional
- The State may invoke the precautionary principle to impose restrictive measures during a novel pandemic without waiting for full scientific certainty
Court orders
#- 1.A declaration that the 1st Respondent's unreasonable use of force in enforcing the Public Order (State Curfew) Order, 2020 is unconstitutional
- 2.An order of mandamus compelling the 2nd Respondent to amend, within five days from the date of the judgment, the Schedule to the Public Order (State Curfew) Order, 2020 so as to include the 3rd Interested Party (IPOA) and the members of the Petitioner in the list of 'services, personnel or workers' exempted from the provisions of the Order
- 3.Each party shall meet own costs of the proceedings
- Jurisdiction invoked
- Articles 23 and 165 of the Constitution (enforcement of Bill of Rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Hillary Mutyambai, Inspector General National Police Service & 4 others", Case Analysis (2020). Petition dated 30th March, 2020 (Constitutional Petition, High Court of Kenya). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.