Khalid & 16 others v Attorney General & 2 others
The bottom line
#Magistrate courts cannot hear Bill of Rights cases unless Parliament specifically allows it.
What this practically means
#The Supreme Court ruled that at the time of this case, magistrate courts had no power to hear constitutional rights violations, except where Parliament later granted limited jurisdiction. The Court also held that the right to see prosecution evidence only applies after a person is formally accused, not upon arrest. General claims that laws are unconstitutional must be raised early in a case, not on appeal.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the arrest, detention and charging of the appellants contravened their fundamental rights and freedoms enshrined in the Constitution under articles 32, 33, 36, 49 and 50 and are therefore unconstitutional.
- 2.Whether the manner in which charges were brought and the charges levelled against the Appellants are unconstitutional and illegal as they fail to meet the standards set out in article 50(2)(j) of the Constitution.
- 3.Whether sections 78(1), 78(2) and 94(1) of the Penal Code are unconstitutional for being vague, too broad and unclear therefore null and void.
- 4.Whether the failure of the Magistrate to hear and determine a constitutional question is unconstitutional.
Key legal issues
#Whether the arrest, detention and charging of the appellants contravened their fundamental rights under articles 32, 33, 36, 49 and 50 of the Constitution.
The Court held that the police did not violate the appellants' rights under those articles. The rights are not absolute and may be limited by the police in the course of their work. The limitations under the Public Order Act and the Penal Code are legitimate and justifiable in an open and democratic society.
The Court agreed with the Court of Appeal that the limitation to the freedoms of assembly, demonstration, picketing and petition is a well-settled principle for order in society and does not violate the Constitution. The Court noted that article 33(2) expressly excludes certain conduct from freedom of expression, and article 37 requires assemblies to be peaceful and unarmed. The Court found that the appellants were promptly informed of the reason for their arrest within the context of a live demonstration, and that the right to fair hearing under article 50(1) was not breached as the appellants had access to the courts. The Court emphasized that specific allegations of violations are matters of evidence best left to the trial court.
Whether the charges and the manner they were brought flout the appellants' constitutional rights under article 50(2)(j).
The Court held that the right under article 50(2)(j) accrues to an accused person, not an arrested person. The appellants must first take plea to become accused persons before they can legitimately allege a violation of this right. The trial had not commenced, so no cause of action could arise under article 50(2)(j).
The Court reasoned that a trial commences after plea is taken. The right to be informed in advance of the evidence is to be enjoyed in the course of the trial. The Court cited the definition of trial from Black's Law Dictionary and the Criminal Procedure Code, noting that proceedings are instituted when a formal charge is made and the accused is called to plead. The Court also noted that the duty of disclosure is a continuing one during the trial, and the accused must first bring to the court's attention that documents have not been supplied.
Whether sections 78(1), 78(2) and 94(1) of the Penal Code are unconstitutional for being vague, too broad and unclear.
The Court found the allegations of unconstitutionality of the impugned sections to be without merit. The limitations contained in those provisions are permissible under articles 24 and 37 of the Constitution.
The Court agreed with the lower courts that the ingredients of the offences are not vague and uncertain. The Court noted that the charge is a succinct description of the offence and the particulars must be clear enough to enable the accused to know what offence he is charged with. The Court emphasized that proof of elements of an offence is a question of fact best left to the trial court, and that a blanket condemnation of statutory provisions is overreaching. The Court also held that the challenge to section 3(1)(c) of the Prevention of Cruelty to Animals Act was improperly before it as it was raised for the first time at the appellate level.
Whether the failure of the Magistrate to hear and determine a constitutional question is unconstitutional.
The Court held that at the time of the appellants' cause of action, the Magistrate's Court did not have jurisdiction to hear and determine matters arising from allegations of violation of the Bill of Rights, as no legislation had been enacted under article 23(2) of the Constitution to vest such jurisdiction. The position has since been addressed by section 8 of the Magistrates Court Act, 2015, which limits that jurisdiction to claims under article 25(a) and (b).
The Court analyzed articles 23, 165, and 169 of the Constitution, noting that the High Court has original jurisdiction to hear and determine applications for redress of violations of the Bill of Rights. Subordinate courts may only exercise such jurisdiction if Parliament enacts legislation to that effect. The Court cited the Court of Appeal decision in Daniel Maingi Muchiri v Jubilee Insurance Company Ltd and the High Court decision in Royal Media Services Ltd v Attorney General to affirm this position. The Court concluded that the Magistrate's Court at the time rightly applied the applicable law.
Legal principles established
#- Magistrate courts lack original jurisdiction over Bill of Rights claims unless Parliament enacts legislation giving them that power.
- The right to be informed of prosecution evidence under Article 50(2)(j) applies to accused persons after plea, not to arrested persons.
- A challenge to a law's constitutionality must be pleaded specifically and cannot be raised for the first time at an appellate stage.
- Police arrest and detention did not violate rights under Articles 32, 33, 36, 49, and 50, as those rights are not absolute.
- Charges under the Penal Code for offences like unlawful assembly are not unconstitutionally vague; proof is a matter for the trial court.
- General, blanket condemnation of statutory provisions is overreaching and insufficient to declare a law unconstitutional.
Court orders
#- 1.The Petition of Appeal dated November 6, 2017 is hereby disallowed.
- 2.Each party shall bear its costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No 1 of 2015
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that the arrest and detention of the appellants violated their rights under articles 29, 32, 33, 36, 49 and 50 of the Constitution
The Court found that the police in arresting, detaining and charging the appellants did not violate the appellants' rights under those articles, and that the limitations were legitimate as the rights are not absolute.
Declaration that the charges levelled against the appellants are illegal and unconstitutional because they fail to meet the standards set out in article 50 of the Constitution
The Court held that the right under article 50(2)(j) accrues to an accused person, and the appellants must first take plea to become accused persons; the trial had not commenced.
Declaration that sections 78(1) and (2) and 94(1) of the Penal Code are unconstitutional
The Court found the allegations of unconstitutionality of the impugned sections to be without merit, and that the limitations are permissible under articles 24 and 37 of the Constitution.
Order to bring to the Supreme Court for quashing of the trial of Criminal Case No 685 of 2013
The Court held that the criminal proceedings should be allowed to continue, as the appellants' grievances do not warrant the nipping of their prosecution by way of a judicial fiat.
Costs
Each party shall bear its costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the police in arresting, detaining and charging the appellants did not violate the appellants’ rights under articles 32, 33, 36, 49 and 50
for the appellants to legitimately allege violation of their article 50(2)(j) right, they must first put themselves within the protection of that article
In the absence of legislation enacted by Parliament to give subordinate courts original jurisdiction to hear and determine matters of denial, violation and infringement of right or fundamental freedom in the Bill of Rights, subordinate courts and tribunals, including, the Magistrate’s Court do not have jurisdiction to hear and determine matters arising from allegations of violation of the Bill of Rights.
the call to declare a provision of the law as unconstitutional is a fundamental call that cannot be made at an advanced stage of litigation, like at this appellate level
The Petition of Appeal dated November 6, 2017 is hereby disallowed.
Each party shall bear its costs.
Key timeline
#Practical implications
#Plead Bill of Rights claims in High Court first
When representing clients with constitutional rights violations, file the main claim in the High Court to avoid jurisdictional issues. If the matter starts in a magistrate court, you cannot challenge the magistrate's refusal to hear constitutional questions—they lacked jurisdiction unless Parliament later granted it under Section 8 of the Magistrates Court Act, 2015, which applies only to Articles 25(a) and (b).
Public assembly planning requires police clearance
Workplaces organizing demonstrations or picketing must comply with the Public Order Act. Police can arrest participants if the assembly is not peaceful or unarmed, as rights under Article 37 require order. Ensure your team obtains necessary permits and understands that free expression does not cover incitement or violence—limitations are legally permissible.
Your rights during arrest are limited before charge
If arrested during a demonstration, you do not have the right to see prosecution evidence immediately—that right starts only after you are formally charged and take plea. Police must inform you of the reason for arrest, but evidence disclosure comes later at trial. Attend court promptly to become an 'accused person' and trigger broader fair trial rights under Article 50.
Frequently asked questions
#Can a magistrate court in Kenya hear my constitutional rights case?+
Generally no, unless Parliament has passed a law allowing it. Currently, the Magistrates Court Act, 2015, only lets magistrates handle claims about torture (Article 25(a)) and inhuman treatment (Article 25(b)). For other rights, you must file in the High Court.
When do I have the right to see police evidence in Kenya?+
Only after you become an 'accused person'—meaning after the court takes your plea. If you are simply arrested, you do not have this right yet. The duty to disclose evidence starts during trial, not at arrest.
Can I challenge a law as unconstitutional in my defense in a Kenyan court?+
Yes, but you must raise the challenge early, with specific arguments. You cannot wait until appeal to claim a law is vague or too broad. The Attorney General must also be involved because overturning a law is serious.
Can police arrest me for demonstrating in Kenya even if I am peaceful?+
Yes, if you do not follow the Public Order Act requiring police notification. The Supreme Court confirmed that limitations on assembly are legal to maintain order. Your rights under Articles 36 and 37 are not absolute—police may arrest if the protest is unlicensed or turns violent.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ongera v Director of Public Prosecutions & another (Civil Appeal 282 of 2019) [2025] KECA 1980 (KLR)[2025] KECA 1980 (KLR)21 Nov 2025applied
- Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption Commission & 2 others (Interested Parties)[2025] KESC 46 (KLR)11 Jul 2025followed
- Nduruhu & another v Okeja & another (Environment and Land Case Civil Suit 235 of 2011) [2024] KEELC 6375 (KLR)[2024] KEELC 6375 (KLR)26 Sept 2024
Cite this brief
#Cite this brief
Caselaw, "Khalid & 16 others v Attorney General & 2 others", Case Analysis (2019). Petition 21 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/93/eng@2019-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.