THE UNIVERSITY OF NAIROBI

SCHOOL OF LAW

2013
THE GICHERU RULES AND
THEIR APPLICABILITY

ADMINSTRATIVE LAW II ASSIGNMENT

Group 12, Second Year, Module I
GPR 209

GROUP MEMBERS
1. MAINA ANTHONY KINYUA
2. NGARUIYA OLIVER MAKIMII
3. OLOO ANNE AKINYI
4. CHEROP HILLARY
5. KUNGU ESTHER WAIRIMU
6. BWENGI K ANGELA
7. KYUMWA J MUSENYA
8. ODALI WINFRED MMBONGA
9. OBOBO VIVIANNE A
10.VUNDI MWENDE

Group 12

G34/2358/2011
G34/2801/2011
G34/2823/2011
G34/2847/2011
G34/2834/2011
G34/2835/2011
G34/2840/2011
G34/2846/2011
G34/2700/2010
G34/2849/2011

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INTRODUCTION
In the awakening of constitutionalism, rule of law and the urge to protect fundamental human
rights and freedoms, different jurisprudential epochs have been manifested hereunder referred to
as Eras. There have been four eras of rules of practice and procedure in respect to the litigation
of constitutional matters. These are: No rules era, Chunga rules era, Gicheru rules era and
recently, the Mutunga rules era.
In this paper, we seek to intricate the following:
1.
2.
3.
4.

The evolution of the above mentioned court rules of practice and procedure
The Gicheru Rules: The rules, its impact and applicability
Relevance of Gicheru Rules today
Judicial Review vis a vis The Gicheru and Mutunga Rules

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1.

THE EVOLUTION OF THE COURT RULES OF PRACTICE AND

PROCEDURE

THE NO-RULES ERA

Before the formulation of Gicheru rules, the law was quite scanty on the procedure for Judicial
Review1. The case of Maina Mbacha v Attorney General2 highlights this. Here, the High Court
distanced itself from its duty to enforce the Bill of Rights. The court ruled inoperative Section
84 of the Constitution (repealed) which granted the court original jurisdiction to enforce the
Fundamental Rights and Freedoms of citizens.
Further, in Gibson Kamau Kuria v The Attorney General3, the applicant who was a critic lawyer
had his passport seized by the government requested for the return of the same because he
wanted to travel outside the country. The request was denied. He made an application under
Section 84(1) of the Constitution saying that the governments action was contrary to Section 81
of the Constitution, which guaranteed every individual the right to move freely and, therefore,
his right to move freely in and out of Kenya had been infringed upon.
The High Court in dismissing his application stated that it lacked the jurisdiction to hear the
matter since the Chief Justice had not made the Rules of practice and procedure as envisaged by
Section 84(6) of the Constitution. The court held:
Had there been Rules made under Section 84(6) on which advocates for the applicant
conceived reliance, that might well have been to the advantage of the request for that which is
termed Constitutional court, the jurisdiction of Section 84 was subject to subsection (6) and since
there were no operative Rules of Practice and Procedure of the High Court, such as in the instant
case, there was a void in the search for certainty which is an all important aspect of jurisdiction.

The Law, the Procedures and the Trends in Jurisprudence on Constitutional and Fundamental Rights Litigation
in Kenya. Ongoya Z. Elisha, Kenya Law Reports, 2008
2 High Court Misc. Application No. 356 of 1989, Unreported
3 High Court Miscellaneous Case No. 550 of 1988
1

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THE CHUNGA RULES ERA

Justice Bernard Chunga, C.J (as he then was) promulgated The Constitution of Kenya
[Protection of Fundamental Rights and Freedoms of the Individual] Practice and Procedure Rules
20014 the rules were made pursuant to Section 84(6) of the Constitution of Kenya. They were
popularly referred to as the Chunga Rules. They envisaged and made provision for three
circumstances under which one would move the High Court under Section 84 of the Constitution
i.e.
a) Where an accused person in a criminal case or party to a civil suit in a subordinate court
alleges contravention of his fundamental rights or freedoms under Sections 70 to 83
(inclusive) of the Constitution in relation to himself;
b) Where contravention of fundamental rights and freedoms is alleged otherwise than in the
course of proceedings in a subordinate court or High Court; and,
c) Where violation of fundamental rights and freedoms is alleged in any proceedings
pending in the High Court
The rules provided for an automatic stay of proceedings in subordinate courts pending the
determination of a constitutional reference to the High Court. This led to abuses of the court
process as accused persons took advantage of the automatic stay to permanently delay the
proceedings. This problem was solved by rule 29 of the Gicheru rules.5

Legal Notice No. 133 of 2001.

The High Court may, upon informal application immediately following the judgment or ruling, grant a stay
for 14 days ending appeal.
4
5

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2.

THE GICHERU RULES: THE RULES, ITS IMPACT AND

APPLICABILITY

Gicheru Rules, officially cited as The Constitution of Kenya (Supervisory Jurisdiction and
Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice
Rules, 2006 were made in exercise of powers conferred on the Chief Justice to formulate rules
pertaining to practices and procedures of the High Court in relation to its jurisdiction and
powers6 including rules with respect to the time within which applications may be brought and
references made to the Court.7 These rules revoked Chunga rules8. Any matter that was pending
under the Rules 2001 was to be continued under the Rules 2006 and any party affected by the
Rules 2001 was to be at liberty to apply to the High Court.
The Constitution vests the High Court with four types of jurisdiction, namely:
1. Supervisory jurisdiction
2. Interpretative / Reference jurisdiction.
3. Enforcement jurisdiction in respect of fundamental rights and freedoms
4. The Unlimited Original Jurisdiction of the High Court

The Gicheru rules deal with the first three, enumerated as:
I.
II.
III.

Rules to invoke the Courts Supervisory Jurisdiction

Rules to invoke the Courts Interpretative Jurisdiction
Rules to invoke the Courts Enforcement Jurisdiction

S 65(3) of the Repealed Constitution

S 84(6) of the Repealed Constitution
8 Rule 36
6
7

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I.

RULES TO INVOKE THE COURTS SUPERVISORY JURISDICTION

The Court may move on its own motion9 to invoke this jurisdiction or may be approached
in the manner of an Originating Notice of Motion10 as set out in Form A11 of the Rules.
The Originating Notice of Motion should briefly state the basis for the application and
should be supported with an affidavit.12
The Registrar shall then, within 7 days from the date of filing, place it before a judge for
directions13.

II.

RULES TO INVOKE THE COURTS INTERPRETATIVE JURISDICTION

This jurisdiction deals with questions of law arising in subordinate courts in either of the
following circumstances;
1. The subordinate court may move to the High Court, on its own motion, through
Form B, if it is of the opinion that the question involves a substantial matter of
law.14
2. Where the question is alleged by a party to the proceedings, he or she shall
request the Presiding Officer of that Court to refer to the High Court using Form
C.15
The subordinate court shall then briefly state the issues and its opinion and refer the
question to the High Court within 14 days.16
The Registrar shall place the reference, within 7 days, before the Chief Justice who shall
then constitute a bench composed of an uneven number of judges not being less than 3.17
However, where there is an interlocutory18 matter, it shall first be placed before a judge
for determination.

III.

RULES TO INVOKE THE COURTS ENFORCEMENT JURISDICTION

An application shall be made to the High Court where there is contravention of the
fundamental rights and freedoms set out in Sections 70 83 of the Repealed
Constitution.19

Rule 6
Rule 2
11 Rule 3
12 Rule 4
13 Rule 5
14 Rule 7
15 Rule 8
16 Rule 9
17 Rule 10; S. 67(3) of the Repealed Constitution
18 Of or pertaining to legal action that is temporary or provisional. It is expressed during a legal action that
awaits final decision.
19 Rule 11
9

10

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It shall be commenced by way of a petition, as set out in Form D, and supported by an

affidavit. Moreover, a party wishing to rely on any document shall annex it to the
affidavit.20
The petition shall then be served to:21
i.
The Attorney General in criminal cases, or
ii.
The Respondent in civil cases.
It shall be responded to, within 14 days of service, by way of a replying affidavit and if
any document was referred upon, it shall be annexed to the replying affidavit.22
A petitioner can also file a further affidavit within 7 days of service of the replying
affidavit.23
The Registrar shall then place the matter before a judge for fixing of a hearing date and
giving of directions within 7 days from the date of service of response or the further
affidavit, whichever is the later. The judge, in giving directions, may require the parties to
make submissions.24
Moreover, a petitioner may set down the matter for hearing and determination where the
Attorney General or the respondent, as the case may be, fails to respond within the 14
days set out above.25

GENERAL RULES
Regardless of the above rules, a judge may hear and determine an application for conservatory or
interim orders commenced in the manner of Chamber Summons. These applications may be
heard ex parte. However, persons affected by proceedings commenced in this manner may apply
for the setting aside of the decisions arrived at.26
The constitutional issue may arise either in the High Court or in subordinate courts. In the High
Court such an issue shall be treated as a preliminary point and shall be heard and determined.27

Rules 12, 13, 14

Rule 15
22 Rule 16
23 Rule 17
24 Rule 18
25 Rule 19
26 Rules 20, 21, 22
27 Rule 23
20
21

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A constitutional issue arising in the subordinate courts is dealt with in two ways, namely;
1. Where it arises in proceedings before a subordinate court whose Presiding Officer is of
the opinion that it is neither frivolous nor vexatious, he refers it to the High Court in
Form E.28
2. Where it is alleged by a party to the proceedings, he or she shall informally apply to the
Presiding Officer during pendency of proceedings for reference to be made to the High
Court to determine the alleged violation. If the Presiding Officer sees merit in the matter,
but does not think it frivolous or vexatious, he shall frame the question to the High Court
under Form F.29
The subordinate court shall then refer to the High Court within 21 days of framing of the
question or as soon as possible.30
The Registrar shall place the matter before a judge, within 7 days of the receipt of reference, for
fixing of a hearing date.31
At the hearing of a reference, only questions set out in Form F shall be determined. 32 If a party
intends to rely on authorities, such as cases or quotes from a book, he shall lodge with the court
and serve copies of the same 2 days before the hearing.33
The High Court may, on application by a party, order staying of all further proceedings before
the subordinate court ending the hearing and determination of the reference.34
Hearing of all applications and references to the High Court shall be given priority over all other
cases and shall be heard and determined expeditiously.35
The High Court may, upon informal application immediately following the judgment or ruling,
grant a stay for 14 days ending appeal.36 Appeals to the Court of Appeal37 shall be governed by
Court of Appeal Rules.38

Rule 24
Rules 25, 26
30 Rule 27
31 Rule 28
32 Rule 30
33 Rule 31
34 Rule 29
35 Rule 32
36 Rule 33
37 Under S 84(7)
38 Rule 34
28
29

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IMPACT AND APPLICABILTIY OF THE GICHERU RULES

The Gicheru Rules were not well received. They were immediately met with resistance. For
instance, the Law Society of Kenya moved to court to oppose the Gazette Notice in the High
Court of Nairobi. 39 Led by its chairman, Mr. Tom Ojienda, they challenged the Hon. Evans
Gicherus failure to follow the law in making the rules. They appeared before Justice Nyamu
seeking, inter alia, that the petition be certified as urgent and for it not to be referred to the Chief
Justice because he was the respondent. The petition was certified as urgent but the matter was
nonetheless referred to the Chief Justice as the court found that he had tremendous respect for the
rule of law. The legality, proportionality, rationality and validity of the Gazette Notice were
under question. The rules were seen by the applicants as curtailing the jurisdiction of the High
Court. This was because the rules vested jurisdiction on the High Court of Nairobi only and the
leave of the Chief Justice had to be sought to have any court hearings outside Nairobi. However,
there were no clear guidelines on how this was going to be done.
It is interesting to note that C.J. Evans Gicheru was criticized as purporting to make rules of
practice and procedure pursuant to section 67 of the constitution 1963. It therefore appeared that
the rules made under section 67 (Rule 7-10 of the Gicheru Rules) were made in excess of the
Chief Justices rule making power and an argument could be sustained that they were null and
void for having been made ultra vires the power of the maker.
Despite the initial opposition to the Gicheru rules, they have been applied in a number of cases.
These cases are discussed below:
Beach Bay Holdings Ltd v Ratim Relators Ltd & 2 others (2013) e-KLR
This was petition 11 of 2011 in the High Court at Malindi. The petitioner was seeking for several
declaratory orders against the respondents, the main one being that the acts carried out by the
respondents in the preparation and production of the letter of allotment reference number
5529/102 dated 24th December, 1991 be declared void and that the letter of allotment and any
title subsequently issued by the court be cancelled.
The 1st respondent filed a notice of preliminary objection. This is what was before the court.
It raised two issues for determination:
a) The suit is a land case and should be filed in the Land and Environmental Division.
b) The suit is defective since it was filed as a petition and should have been a plaint under
the Land Act.
It was held by Angote J that the preliminary objection was correctly before the court but that it
should raise purely a point of law.
39The

Standard, Kenya: Lawyers Take Gicheru to Court Over New Rules, By Jibril Adan, 12 February 2007.

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Article 22(1) of the Constitution of Kenya provides every person with a right to institute court
proceedings claiming denial/ violation of their rights or fundamental freedom.
The procedure of moving the High Court or Environment & Land Court, which has the same
status as the High Court where the petitioner was alleging infringement of his rights and
freedoms or seeking for orders enumerated under article 22(3) of the Constitution of Kenya is in
the Gicheru Rules. The only procedure recognized under the Gicheru Rules of moving to the
court for enforcement of the bill of rights is by way of petition. The respondents were supposed
to answer the case by filing replying affidavits and annex any documents that they wish to rely
on.

Trusted Society of Human Rights Alliance v AG & 5 others (2012) e-KLR

This was a petition questioning the constitutionality of the appointment of Mr. Mumo Matemu as
the Chairperson of the Ethics and Anti- Corruption Commission. Among the issues for
determination was whether the court had jurisdiction to hear the petition.
It was held that the High Court had the jurisdiction to hear the petition and properly review both
the procedures of appointment of the Interested Party (Mumo Matemu) as well as the legality of
his appointment. The procedure recognized under the Gicheru Rules of moving the court for
enforcement of the bill of rights is by way of a petition. Therefore, the petition was rightly before
the High Court.

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3. RELEVANCE OF GICHERU RULES TODAY

The introduction of the Mutunga rules on 28th June 2013 has rendered Part III of the Gicheru
rules void. In this section we discuss the provisions of the Mutunga rules that were lacking in the
Gicheru Rules.
THE MUTUNGA RULES
The Constitution 2010 asserts that every person has the right to institute court proceedings
claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated,
infringed upon or is threatened40 and that the State shall ensure access to justice for all persons.41
It also gives powers to the Chief Justice under Article 22(3) to make rules as pertaining to the
enforcement of the Bill of Rights espoused in Chapter 4 of the Constitution. In this light, the C.J.
Dr. Willy Mutunga made rules of practice and procedure for the enforcement of the Bill Of
Rights cited as The Constitution of Kenya (Protection of Rights and Fundamental Freedoms)
Practice and Procedure Rules, 2013.
As much as the Mutunga rules serve to provide the new procedures and rules to be followed in
bringing matters concerning the Bill of Rights, these rules do not entirely replace the Gicheru
Rules. Rule 33(1) of the Mutunga rules revokes only Part III of the Gicheru rules. However, any
matter currently pending under Part III of the Gicheru rules may be continued under the Mutunga
Rules.42
The Mutunga rules, 2013 encompass a number of provisions that were not in the Gicheru rules.
These include:
I.
Enforcement of rights not provided for in the repealed constitution: One such right to be
enforced by the Mutunga rules is Intellectual Property Rights. The right to property as
provided for in section 75 of the old constitution did not include the IP rights. However,
in the new constitution under article 40 as read with article 260 extend the right of
property to cover both real and intangible property rights.
II.
Introduction of the Friend of the Court (amicus curiae): This is provided for under rule
6. The rule provides that the court may allow any person with expertise in a matter before
the court to appear as a friend of the court with leave43 or by the courts own motion.44
III.
Inclusion of the Overriding Objective: Provided for under Rule 4, the court in exercising
its powers is to ensure the just, expeditious, and proportionate and resolution of all cases.
IV.
Alternative Dispute Resolution: The Mutunga rules provide that the court may refer a
matter for determination by alternative dispute resolution mechanism45. This is to further

Article 22(1)
Article 48
42 Rule 33(2) of The Mutunga Rules
43
Rule 6(b)
44
Rule 6(c); Article 22 (3)(e)
45
Rule 31
40
41

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V.

46
47

the Overriding Objective which seeks the timely disposal of cases and facilitates access
to justice for all persons.46
In addition to a person acting in their own interests, court proceedings may also be
instituted by:47
a) A person acting on behalf of another person who cannot act in their own name
b) A person acting as a member of, or in the interest of, a group or class of persons
c) A person acting in the public interest
d) An association acting in the interest of one or more of its members

Rule 5(c); Article 48

Rule 7; Article 22(2)

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4. JUDICIAL REVIEW VIS A VIS THE GICHERU AND MUTUNGA RULES

Judicial review seeks to offer redress to suffering caused by the decision making process of
administrative bodies. It strictly deals with the manner in which a decision is arrived at.
e.g. where there was an error of law on the face of the records, where the exercise of power was
in bad faith, where a decision was arrived at is ultra vires, or where there was failure to exercise
power by either delegating it to another body or fettering itself in its free exercise of power.
The Gicheru and Mutunga rules, on the other hand serve a facilitative function. They set out the
procedure to be followed in approaching the High Court to hear and determine applications for
redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in
the Bill of Rights and outline procedures of how one may institute proceedings with the High
Court to invoke its supervisory jurisdiction and to seek interpretation of the Court on a question
of law. Under these rules, when questions are framed in a reference from a subordinate court,
only those questions framed in the prescribed form are to be addressed. While in Judicial Review
the decision making process of an administrative body is looked at in its entirety.
The key difference lies on the fact that in one case a person approaches the High Court in its
Judicial Review Division whilst seeking orders such as mandamus, certiorari or prohibition
while in the other, a person petitions the High Court in its Constitutional and Human Rights
Division while seeking declaratory orders.
It is interesting to note that one of the orders a court may grant in proceedings brought under
Article 22 is an order for judicial review.48
Furthermore, the court, while observing the rules of natural justice, shall not be unreasonably
restricted by procedural technicalities. 49 In fact, the court shall, if necessary, entertain
proceedings on the basis of informal documentation.50
Other than the fact that applications and references to the High Court will be procedurally
governed by the Gicheru and Mutunga rules whereas the Judicial Review process is governed by
Order 53 of the Civil Procedure Rules, there is little difference if one is to look at the substance
of the matter. The end result of both the rules and judicial review is the same: attainment of
justice. Thus, an applicants case should not be thrown out on the mere basis that it was filed
wrongly and in the wrong division of the court. Why shouldnt the matter be easily solved by
transferring the documents from one division of the High Court to the other? Doesnt this, in the
long run, lead to dispensation of justice? And is this not the paramount role of our courts?
Article 23 (3) (f)
Article 22 (3) (d)
50 Article 22 (3) (b)
48
49

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Nonetheless, actions that violate human rights could equally qualify as administrative malpractices which warrant judicial intervention by way of judicial review or as an action for
enforcement under Gicheru (now under the Mutunga) Rules.
This was reiterated in the celebrated case of Githunguri v Republic.51
This case addressed the issue of how to approach the High Court. The applicant was charged in a
magistrates court with several counts alleging contraventions of The Exchange Control Act
(Cap 113).52 He complained the present charges against him had been resurrected years after he
had not been charged and that he was charged notwithstanding all previous assurances by the
police that he would not be prosecuted. He successfully made an application under section 67(1)
of the Constitution.
The Court held that it was a proper exercise of the powers of the A.G. to institute proceedings in
this manner provided that nothing further had been done such as informing the person concerned
that no proceedings will be instituted or returning to him or disposing of any property involved.
This is because, as a consequence of being led to believe that the there would be no prosecution,
the accused may have destroyed or lost evidence in his favour. It was also held that unless good
and valid reasons exist for doing so, such as discovery of important and credible fresh evidence
or the return from abroad of the person concerned, such a charge is vexatious, an abuse of the
process of the Court and contrary to public policy.
The Constitutional Court followed up by saying that in the proceedings before them, they could
do no more than answer the questions contained in the reference. The trial magistrate was still at
liberty to proceed with the trial unless the Attorney-General, in light of the Courts answers to
the questions referred to it, decided, as the Court hoped he would, to terminate the proceedings
or unless the accused applied for a prerogative order.
The Attorney-General refused to terminate the proceedings. Consequently, the applicant, after
obtaining leave under Order LIII rule 1(2) of the Civil Procedure Rules, by motion asked the
High Court to make an order prohibiting the magistrate from further proceeding to hear the case.
The application was heard by two judges who, after failing to reach a unanimous decision, were
divested of it by the Acting Chief Justice who ordered the application to be re-heard de novo53 by
three judges of the High Court.
The three-judge bench held (obiter) that the applicants questions had been wrongly referred to
the Constitutional Court under section 67(1) of the Constitution as none of the questions related
to the interpretation of the Constitution.54 The questions would have been properly framed under
[1986] KLR 1
That has since been repealed by Act No 11 of 1995
53 Anew, afresh, from the beginning; without consideration of previous proceedings.
54 The two prerequisites for reference to a Constitutional Court are that the question must relate to the
interpretation of the Constitution and that the subordinate Court must be of the opinion that the question
involves a substantial question of law.
51
52

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an application to the High Court under section 84 of the Constitution for redress for the
infringement of a fundamental right under section 77(1) of the Constitution.55
In its main decision, the Court held that the delay to prosecute was so inordinate as to make the
non-action inexcusable. Furthermore, the applicant was entitled to the order of prohibition sought
because Attorney Generals right to change the decision to prosecute had been lost. Prosecution
of the applicant would therefore be an abuse of the process of the Court, oppressive and
malicious, and it would not be in the public interest.
The prohibition order was granted.
Githunguri was an isolated judgment. Prior to the Constitutional Review Cases, the courts
adopted an inconsistent and conservative approach to constitutional interpretation.56 This can be
seen in the diversity of the manner in which the two cases below were decided.
In R v Kenya Road Board Ex parte John Harun,57 the Court held that:
The remedy of Judicial Review is available as a procedure through which the applicant can
come to court for the determination of any Constitutional issue including striking down of
legislation which may be unconstitutional. Judicial Review in this sense means the power to
scrutinize laws and executive acts, the power to test their conformity with the Constitution and
the power to strike them down if they are found to be inconsistent with the Constitution. I am
convinced that the Kenyan courts have been given such jurisdiction under sections 60, 84 and
123(8) of the Constitution.
Where there are no rules of practice and procedure one can find justification in the general
argument that in the absence of rules of practice and procedure, judicial review may be an
available remedy.

In R v Hon. Chief Justice of Kenya & Others Ex Parte Roseline Naliaka Nambuye, the Court
held that:
For any alleged breach of fundamental rights to be properly articulated, an application by
way of an Originating Summons is required by the Rules made under the Constitution. Where
the applicant purports to enforce such rights by way of a Notice of Motion seeking Judicial
Namely, the right of an accused person to a fair hearing within a reasonable time.
Muthomi Thiankolu, Landmarks for El Mann to the Saitoti Ruling: Searching a philosophy of Constitutional
Interpretation in Kenya, Kenya Law Review
57 eKLR 2005
55
56

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Review Orders of certiorari, mandamus and prohibition, such an application is clearly defective
under the law. The prayers sought must fail on this ground.
The difference between the two cases, hence the different grounds taken by the court, was that
the Nambuye case was determined at a time when rules of practice and procedure had been
promulgated by the Chief Justice to govern applications relating to enforcement of fundamental
rights and freedoms spelt out under Sections 70 to 83(inclusive) of the Constitution 1963. While
the Kenya Roads Board case was decided before the promulgation of the Gicheru Rules.
In essence, from the above, an action for enforcement of fundamental rights and freedoms of the
Constitution under Section 84 (now under Article 165) is available without prejudice to any
other action with respect to the same matter that is lawfully available. Logically, one of the
lawful avenues for redress may be judicial review but the applicant can choose to go by either, or
even both.

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CONCLUSION
As a country, we have gradually evolved from an era of futile protection of fundamental rights
and freedoms embedded in the Constitution to an era where fundamental freedoms and rights are
being enforced. Previously, these rights could not be upheld by the Courts due to the absence of
rules of practice and procedure to guide the Courts. This was the issue in Gibson Kamau Kuria v
The Attorney General (1988).
It is interesting to note that this vacuity of rules was not resolved until 2001 when the Chunga
Rules were introduced. Since then, the Gicheru Rules were introduced and recently, the Mutunga
Rules have been established to guide the court in terms of procedure in enforcing human rights
as provided for in the Constituiton. Moreover, the law has, it seems in the abundance of caution,
set up a constitutional provision that states that even the absence of rules will no longer limit the
right of any person to commence court proceedings and to have the matter heard and determined
by a court.58

58

Article 22(4)

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REFERENCES
1. The Constitution of Kenya [Protection of Fundamental Rights and Freedoms of the
Individual] Practice and Procedure Rules 2001. Legal Notice No. 133 of 2001.
2. The Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental
Rights and Freedoms of the Individual) High Court Practice Rules, 2006. Legal Notice
No. 6 of 2006.
3. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice
and Procedure Rules, 2013. Legal Notice No. 117 of 2013.
4. The Constitution of Kenya, 1969 (as amended to 1997)
5. The Constitution of Kenya, 2010.
6. Muthomi Thiankolu, Landmarks for El Mann to the Saitoti Ruling: Searching a
philosophy of Constitutional Interpretation in Kenya, Kenya Law Review.
7. The Standard, Kenya: Lawyers Take Gicheru to Court Over New Rules, By Jibril Adan,
12 February 2007.
8. The Law, the Procedures and the Trends in Jurisprudence on Constitutional and
Fundamental Rights Litigation in Kenya. Ongoya Z. Elisha, Kenya Law Reports, 2008.

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Form A (rule 3)
IN THE HIGH COURT OF KENYA AT.
CONSTITUTIONAL APPLICATION NO ................ OF...
IN THE MATTER OF AN APPLICATION UNDER SECTION 65
BETWEEN
(insert names of parties)......

APPLICANT
AND

(insert names of parties). ................................. RESPONDENT

ORIGINATING NOTICE OF MOTION

TAKE NOTICE
that on the .....................................
forenoon or so soon thereafter as can be heard, the above applicant/counsel for the
applicant will move the Court for an Order that
............................................
.
State the concise grounds.............................................................................
The application is supported by the annexed affidavit ofsworn on
the ............. day of .................... 20...
The address for service of the applicant is.
DATED this ................................. day of ..................................................................... 20...
SIGNED ............................................................................ Applicant/Advocate for applicant
DRAWN AND FILED BY:

TO BE SERVED UPON:

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FORM B (rule 7)

IN THE HIGH COURT OF KENYA AT

CONSTITUTIONAL REFERENCE NO ........................ OF ......................
IN THE MATTER OF SECTION 67
IN THE MATTER OF CRIMINAL/CIVIL CASE NO..OF...............
AT ................................................COURT
BETWEEN
A.B. (insert names of parties)..APPLICANT
AND
C.D. (insert names of parties). ..RESPONDENT
To: The High Court of Kenya;
Question(s) for Interpretation of the Constitution by the High Court pursuant to Section 67 of
the Constitution.
1.

On the ............. day of ................................ 20. .......... a question(s) as to the

interpretation of the Constitution arose.

2.

... (briefly set out the opinion of the subordinate court on the point of law raised)

3.

... (briefly set out the facts necessary to enable the High Court to properly decide the point of law
raised)

4.

The question(s) for the decision of the High Court is .... (state the question(s).

DATED this..day of20.

Magistrate/ Presiding Officer

Group 12

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FORM C (rule 8)
IN THE HIGH COURT OF KENYA AT ..............
CONSTITUTIONAL REFERENCE NO.....OF .........................
IN THE MATTER OF SECTION 67
IN THE MATTER OF CRIMINAL/CIVIL CASE NO .................... .0F.....
AT ................................................ COURT
BETWEEN
(insert names of parties) ..APPLICANT
AND
(insert names of parties)...RESPONDENT
The High Court of Kenya;
Question(s) for Interpretation of the Constitution by the High Court pursuant to Section 67(1)
of the Constitution.
On the...day of ...................................20 ..........a question(s) as to the
interpretation of the Constitution arose.
2.

T h e p a r t i e s c o n t e n d a s f o l l o w s (set out, in consecutive

paragraphs the specific issues contended by each of the parties referring where necessary to
Acts or decided cases.) ..............................................

3.

.....(briefly set out the opinion of the subordinate court on the point of law raised)

4.

.. (briefly set out the facts necessary to enable the High Court to properly decide the
point(s) of law raised)

5.

The question(s) for the decision of the High Court is . (state

the question(s) .

DATED this..day of20.

Magistrate/ Presiding Officer

Group 12

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FORM D (r. 12)

IN THE HIGH COURT OF KENYA AT
PETITION NOOF.20...
IN THE MATTER OF SECTION 84(1)
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS
UNDER SECTION (insert section)... .............
BETWEEN
(insert names of parties) ...................................................................PETITIONER
AND
(insert names of parties) RESPONDENT

The High Court of Kenya

The humble petition of A.B (insert names of petitioner) of ............................... in
The Republic of Kenya is as follows........................ (the allegations upon which the petitioner (s) rely must be concisely
set out, in consecutively numbered paragraphs)...................................
Your Petitioner(s) therefore humbly pray(s) that ...............................................
(set out exact Order (s) sought) ..........................................................................................................
Or that such other Order(s) as this Honourable Court shall deem just.
DATED at ................... this ................... day of..

.20

Signed ......................................................... Petitioner/Advocate for the Petitioner

DRAWN & FILED BY:
TO BE SERVED UPON:

FORM E (r.24)
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IN THE HIGH COURT OF KENYA AT..............................

CONSTITUTIONAL REFERENCE NO.....OF.

IN THE MATTER OF SECTION 84(3)

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS

UNDER SECTION (insert section)............................................................................................................
IN THE MATTER OF CRIMINAL/CIVIL CASE NO ......................... OF ......................
AT ............................................... .COURT
BETWEEN
(insert names of parties).

APPLICANT

AND
(insert names of parties). .......................................................................RESPONDENT
To The High Court of Kenya;
Question(s) for determination on the alleged contravention of Section(s)

of

The Constitution of Kenya.

1.
2.
3.

4.

O n t h e . . . . . . . day of ................................... 20........... a question(s) arose

as to the contravention of section(s) ................... .of the Constitution.
.......(briefly set out the opinion of the subordinate court on the question raised)
(Briefly set out the facts necessary to enable the High Court to properly decide the question(s) raised.)
The question(s) for determination by the High Court is.... (state the question(s).

DATED this ........................ .day of20..

Magistrate / Presiding Officer
Form F (r.26)
IN THE HIGH COURT OF KENYA AT......... ..
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CONSTITUTIONAL REFERENCE NO...........OF

IN THE MATTER OF SECTION 84(3)
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL
RIGHTS AND FREEDOMS UNDER SECTION (insert section).....................................
IN THE MATTER OF CRIMINAL/CIVIL CASE NO ....................... OF ........................
AT ................................................ COURT
BETWEEN
(insert names of parties), .................. APPLICANT
AND
(insert names of parties) ................................................................RESPONDENT
To: The High Court of Kenya;
Question(s) for determination of the alleged contravention of Section(s) ...... of the
Constitution of Kenya.
1. On the ................................day of....................................... 20.a question(s) arose as to the
contravention of section(s) ....... of the Constitution.
2. T h e p a r t i e s c o n t e n d a s f o l l o w s . . . . . . . . . . . . . . . (set out, in consecutive
paragraphs the specific issues contended by each of the parties referring where necessary to Acts or
decided cases.).........
3. (briefly set out the opinion of the subordinate co4rt on the question raised)
4. ... (briefly set out the facts necessary to enable the High Court to properly decide the question(s) raised)
5. The question(s) for determination of the High Court is ...............................
(state the question(s) .
DATED this............................... day of .....................................................................20 .....
Magistrate/Presiding Officer

Group 12

Page 25