SPECIAL ISSUE 1743

Kenya Gazette Supplement No. 95 28th June, 2013

(Legislative Supplement No. 47)

LEGAL NOTICE NO. 117

THE CONSTITUTION OF KENYA
IN EXERCISE of the powers conferred by Article 22(3) as read
with Article 23 and Article 165 (3) (b) of the Constitution of Kenya, the
Chief Justice makes the following Rules:—
THE CONSTITUTION OF KENYA (PROTECTION OF
RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND
PROCEDURE RULES, 2013
PART I ––PRELIMINARY
1.These rules may be cited as the Constitution of Kenya Citation.
(Protection of Rights and Fundamental Freedoms) Practice and
Procedure Rules, 2013.
2.In these rules, unless the context requires otherwise— Interpretation.

―Constitution‖ means the Constitution of Kenya;

―costs‖ means lawyers’ fees and other disbursements of the
parties but does not include court fees;
―Court of Appeal‖ means the Court of Appeal of Kenya
established by Article 164 of the Constitution;
―document‖ includes––
(a) any publication, or any matter written, expressed, or inscribed
on any substance by means of letters, figures or marks, or by
more than one of those means, that is intended to be used or
may be used for the purpose of recording that matter; and
(b) electronic files;
―friend of the court‖ is an independent and impartial expert on an
issue which is the subject matter of proceedings but is not party to the
case and serves to benefit the court with their expertise;
―High Court‖ means the High Court of Kenya established by
Article 165 of the Constitution and includes courts with the status of a
High Court established under Article 162 (2) of the Constitution;
―informal documentation‖ includes any legible document in any
language that is simple, does not conform to any particular form or
rules of grammar and conveys information;
―interested party‖ means a person or entity that has an
identifiable stake or legal interest or duty in the proceedings before the
court but is not a party to the proceedings or may not be directly
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involved in the litigation;

―person‖ includes an individual, organisation, company,
association or any other body of persons whether incorporated or
unincorporated;
―petitioner‖ means any person who institutes proceedings or
cross petitions under these rules and for the purposes of a cross petition
includes a cross petitioner;
―Registrar‖ includes assistant and deputy registrar in any
particular court;
―respondent‖ means a person who is alleged to have denied,
violated or infringed, or threatened to deny, violate or infringe a right
or fundamental freedom;
―service‖ means delivery of an order, summons, or other legal
papers to the person required to respond to them;and
―Supreme Court‖ means the Supreme Court of Kenya established
by Article 163 of the Constitution.
3.(1) These rules shall apply to all proceedings made under Scope and
Article 22 of the Constitution. objectives.

(2) The overriding objective of these rules is to facilitate access

to justice for all persons as required under Article 48 of the
Constitution.
(3) These rules shall be interpreted in accordance with Article
259(1) of the Constitution and shall be applied with a view to
advancing and realising the—
(a) rights and fundamental freedoms enshrined in the Bill of
Rights; and
(b) values and principles in the Constitution.
(4) The Court in exercise of its jurisdiction under these rules shall
facilitate the just, expeditious, proportionate and affordable resolution
of all cases.
(5) For the purpose of furthering the overriding objective, the
Court shall handle all matters presented before it to achieve the—
(a) just determination of the proceedings;
(b) efficient use of the available and administrative resources;
(c) timely disposal of proceedings at a cost affordable by the
respective parties; and
(d) use of appropriate technology.
(6) A party to proceedings commenced under these rules, or an
advocate for such party is under a duty to assist the Court to further the
overriding objective of these rules andin that regard to—
(a) participate in the processes of the Court; and
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(b) comply with the directions and orders of the Court.

(7) The Court shall pursue access to justice for all persons
including the—
(a) poor;
(b) illiterate;
(c) uninformed;
(d) unrepresented; and
(e) persons with disabilities
(8) Nothing in these rules shall limit or otherwise affect the
inherent power of the Court to make such orders as may be
necessaryfor the ends of justice or to prevent abuse of the process of the
Court.
PART II—PROCEDURE FOR INSTITUTING COURT
PROCEEDINGS
4. (1) Where any right or fundamental freedom provided for in Contravention of
the Constitution is allegedly denied, violated or infringed or threatened, rights or
fundamental
a person so affected or likely to be affected, may make an application freedoms.
to the High Court in accordance to these rules.

(2) In addition to a person acting in their own interest, court

proceedings under sub rule (1) may be instituted by—
(i) a person acting on behalf of another person who cannot act in
their own name;
(ii) a person acting as a member of, or in the interest of, a group
or class of persons;
(iii) a person acting in the public interest; or
(iv) an association acting in the interest of one or more of its
members.
5. The following procedure shall apply with respect to addition, Addition, joinder,
joinder, substitution and striking out of parties— substitution and
striking out of
(a) Where the petitioner is in doubt as to the persons from whom parties.
redress should be sought, the petitioner may join two or
more respondents in order that the question as to which of
the respondent is liable, and to what extent, may be
determined as between all parties.
(b) A petition shall not be defeated by reason of the misjoinder
or non-joinder of parties, and the Court may in every
proceeding deal with the matter in dispute.
(c) Where proceedings have been instituted in the name of the
wrong person as petitioner, or where it is doubtful whether it
has been instituted in the name of the right petitioner, the
Court may at any stage of the proceedings, if satisfied that
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the proceedings have been instituted through a mistake made

in good faith, and that it is necessary for the determination of
the matter in dispute, order any other person to be substituted
or added as petitioner upon such terms as it thinks fit.
(d) The Court may at any stage of the proceedings, either upon
or without the application of either party, and on such terms
as may appear just—
(i) order that the name of any party improperly joined, be
struck out; and
(ii) that the name of any person who ought to have been
joined, or whose presence before the court may be
necessary in order to enable the court adjudicate upon
and settle the matter, be added.
(e) Where a respondent is added or substituted, the petition shall
unless the court otherwise directs, be amended in such a
manner as may be necessary, and amended copies of the
petition shall be served on the new respondent and, if the
court thinks, fit on the original respondents.
6. The following procedure shall apply with respect to a friend of Friend of the
the court— Court.

(a) The Court may allow any person with expertise in a

particular issue which is before the Court to appear as a
friend of the Court.
(b) Leave to appear as a friend of the Court may be granted to
any person on application orally or in writing.
(c) The Court may on its own motion request a person with
expertise to appear as a friend of the Court in proceedings
before it.
7. (1) A person, with leave of the Court, may make an oral or Interested party.
written application to be joined as an interested party.
(2)A court may on its own motion join any interested party to the
proceedings before it.
8. (1) Every case shall be instituted in the High Court within Place of filing.
whose jurisdiction the alleged violation took place.
(2) Despite sub rule (1), the High Court may order that a petition
be transferred to another court of competent jurisdiction either on its
own motion or on the application of a party.
9.(1) The Court may direct that notice of institution of petition be Notice of
posted on the Court notice board or be published in the Gazette, a daily institution of the
petition.
newspaper with national circulation or the Judiciary’s website.
(2) The notice referred to in sub rule (1) shall—
(a) contain a brief summary of the case, reference to the
provisions of the Constitution violated or infringed and the
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relief sought; and

(b) be approved by the Registrar.
10. (1) An application under rule 4 shall be made by way of a Form of petition.
petition as set out in Form A in the Schedule with such alterations as
may be necessary.
(2) The petition shall disclose the following—
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) the nature of injury caused or likely to be caused to the
petitioner or the person in whose name the petitioner has
instituted the suit; or in a public interest case to the public,
class of persons or community;
(e) details regarding any civil or criminal case, involving the
petitioner or any of the petitioners, which is related to the
matters in issue in the petition;
(f) the petition shall be signed by the petitioner or the advocate
of the petitioner; and
(g) the relief sought by the petitioner.
(3) Subject to rules 9 and 10, the Court may accept an oral
application, a letter or any other informal documentation which
discloses denial, violation, infringement or threat to a right or
fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be
reduced into writing by the Court.
11. (1) The petition filed under these rules may be supported by Documents to be
an affidavit. annexed to
affidavit or
(2) If a party wishes to rely on any document, the documentshall petition.
be annexed to the supporting affidavit or the petition where there is no
supporting affidavit.
12. The Registrar shall cause a prescribed form to be available in Registrar to assist
the Registry to assist petitioners who bring oral applications to have in filing of
petitions.
them reduced in writing.
13. A petition filed under certificate of urgency may be placed Petition filed
before a Judge for appropriate orders or directions. under certificate
of urgency.
14. (1) The petitioner shall serve the respondent with the petition, Service of
documents and relevant annexures within 15 days of filing or such time petition.
as the court may direct.
(2) Proof of service shall be the affidavit of service set out in
Form B in the Schedule with such variations as may be necessary.
15. (1) The Attorney-General or any other State organ shall Reply to a
within fourteen days of service of a petition respond by way of a petition.
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replying affidavit and if any document is relied upon, it shall be

annexed to the replying affidavit.
(2) (a) A respondent not in the category of sub rule (1) shall
within seven days file a memorandum of appearance and either a—
(i) replying affidavit; or
(ii) statement setting out the grounds relied upon to oppose
the petition.
(b) After filing either of the documents referred to in sub rule (2)
(a), a respondent may respond by way of a replying affidavit
or provide any other written document as a response to the
petition within fourteen days.
(3) The respondent may file a cross-petition which shall disclose
the matter set out in rule 10(2).
16. (1) If the respondentdoes not respond within the time Failure to respond
stipulated in rule 15, the Court may hear and determine the petition in within stipulated
time.
the respondent’s absence.
(2) The Court may set aside an order made under subrule (1) on
its own motion or upon the application of the respondent or a party
affected by the order.
17.The Court may on its own motion or on application by any Consolidation.
party consolidate several petitions on such terms as it may deem just.
18.A party that wishes to amend its pleadings at any stage of the Amendment of
proceedings may do so with the leave of the Court. pleadings.

19.A formal application under these rules shall be by Notice of Formal

Motion set out in Form D in the schedule and may be supported by an applications.
affidavit.
PART III —HEARING AND DETERMINATION OF COURT
PROCEEDINGS
20. (1) The hearing of the petition shall, unless the Court Hearing of the
otherwise directs, be by way of— petition.

(a) affidavits;
(b) written submissions; or
(c) oral evidence.
(2) The Court may limit the time for oral submissions by the
parties.
(3) The Court may upon application or on its own motion direct
that the petition or part thereof be heard by oral evidence.
(4) The Court may on its own motion, examine any witness or
call and examine or recall any witness if the Court is of the opinion that
the evidence is likely to assist the court to arrive at a decision.
(5) A person summoned as a witness by the court may be cross
examined by the parties to the petition.
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21. (1) In giving directions on the hearing of the case, a Judge Evaluating
may require that parties file and serve written submissions within petition for
directions and
fourteen days of such directions or such other time as the Judge may allocating hearing
direct. dates.
(2) A party who wishes to file further information at any stage of
the proceedings may do so with the leave of the Court.
(3) The Court may frame the issues for determination at the
hearing and give such directions as are necessary for the expeditious
hearing of the case.
22. (1) Each party may file written submissions. Written
submissions.
(2) Subject to such directions as may be issued by the court,
written submissions shall contain the following—
(a) a brief statement of facts with reference to exhibits, if any,
attached to the petition;
(b) issues arising for determination; and
(c) a concise statement of argument on each issue incorporating
the relevant authorities referred to together with the full
citation of each authority.
(3) Copies of the authorities to be relied on shall be attached to
the written submissions.
23. (1) Despite any provision to the contrary, a Judge before Conservatory or
whom a petition under rule 4 is presented shall hear and determine an interim orders.
application for conservatory or interim orders.
(2) Service of the application in sub rule (1) may be dispensed
with, with leave of the Court.
(3) The orders issued in sub rule (1) shall be personally served on
the respondent or the advocate on record or with leave of the Court, by
substituted service within such time as may be limited by the Court.
24. (1) An application under rule 23may be made by way of Application under
notice of motion or by informal documentation. rule 21.

(2) Where an oral application is made under rule 23, the Court
shall reduce it in writing.
25. An order issued under rule 22 may be discharged, varied or Setting aside,
set aside by the Court either on its own motion or on application by a varying or
discharge.
party dissatisfied with the order.
26. (1) The award of costs is at the discretion of the Court. Costs.

(2) In exercising its discretion to award costs, the Court shall take
appropriate measures to ensure that every person has access to the
Court to determine their rights and fundamental freedoms.
27. (1) The petitioner may— Withdrawal or
discontinuance.
(a) on notice to the court and to the respondent, apply to
withdraw the petition; or
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(b) with the leave of the court, discontinue the proceedings.

(2) The Court shall, after hearing the parties to the proceedings,
decide on the matter and determine the juridical effects of that decision.
(3) Despite sub rule (2), the Court may, for reasons to be
recorded, proceed with the hearing of a case petition in spite of the
wish of the petitioner to withdraw or discontinue the proceedings.
28. If the respondent does not dispute the facts in the petition Acquiescence.
whether wholly or in part, the Court shall, after hearing the parties,
make such orders as it may deem fit.
29. The parties may, with leave of the Court, record an amicable Settlement by
settlement reached by the parties in partial or final determination of the consent.
case.
30. The Court may extend time limited by these rules, or by any Extension of time.
decision of the Court.
31. The Court may refer a matter for hearing and determination Use of alternative
by alternative dispute resolution mechanism. dispute resolution.

32. (1) An appeal or a second appeal shall not operate as a stay of Stay pending
execution or proceedings under a decree or order appealed. appeal.

(2) An application for stay of execution may be made informally

immediately following the delivery of judgment or ruling and the court
may issue such orders as it deems fit and just.
(3) A formal application for stay may be filed within 14 days of
the decision appealed from or within such time as the court may direct.
33. (1) Part III of The Constitution of Kenya (Supervisory Revocation of part
Jurisdiction and Protection of Fundamental Rights and Freedoms of the III of L.N. 6 of
2006.
Individual) High Court Practice and Procedure Rules, 2006 is revoked.
(2) Despite sub rule (1), a matter currently pending in Court
under Part III of Legal Notice No.6 of 2006 may be continued under
these rules.
34. There shall be paid in respect of all proceedings under these Court Fees
Rules the same court fees as are payable in respect of civil proceedings
in the High Court in so far as the same are applicable.
35. (1) A person who wishes to be exempted from paying court
fees may apply to the Registrar. Waiver of court
fees.
(2) An application under sub-rule (1) may be made by informal
documentation.
(3) The reasons for the Registrar’s decision shall be recorded.
36.The Chief Justice may issue practice directions for the better Practice
carrying out of these rules. Directions.

37.The Chief Justice may review these rules from time to time. Review.
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SCHEDULE

FORM A (r. 10(1))

IN THE HIGH COURT OF KENYA AT .............................

PETITION NO. ...... OF .....................20.....

IN THE MATTER OF Article 22(1)

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR

FUNDAMENTAL FREEDOMS UNDER ARTICLE(insert article)
.............................................................................

BETWEEN
A.B. (insert names of parties) ...................................... PETITIONER

AND
C.D. (insert names of parties) .........................................RESPONDENT
TO:

The High Court of Kenya

The Petition of A.B (insert names of Petitioner) of (insert address of Petitioner) ...........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 and should address the following:

(a) the facts of the case,

(b) nature of the injury caused or likely to be caused to Petitioner or public in public
interest suits,

(c) details regarding any civil, criminal or other litigation involving the Petitioner which
could have a legal nexus with the issue raised in the suit) ………….............……………..

Your Petitioner(s) therefore 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:
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FORM B (r. 14(2))

AFFIDAVIT OF SERVICE
(Title)

I...........................................................................of........................................ ... an adult of

sound mind/advocate/a police officer/a process server of the court make oath and say as
follows:

(1) On ..................................................., 20 .................at.....................(time) I served the

petition/replying affidavit/document in this case on..................(name) at....................
(place) by tendering a copy thereof to him/her and requiring a signature on the original.
He/She signed/refused to sign the petition/replying affidavit/document. He/She was
personally known to me/was identified to me by................................and admitted that
he/she was the respondent/petitioner.

(2) Not being able to find the respondent/petitioner on...................................,

20...............at ..............................(time) I served the petition/replying affidavit/document
on.......................................... (name) an adult member of the family of the
respondent/petitioner who is residing with him/her.

(3) Not being able to find the respondent/petitioner or any person on whom service could
be made, on...................................................... , 20 ...........at ....................(time), I affixed
a copy of the petition/replying affidavit/document to the outer door
of................................................being the house in which he/she ordinarily resides/carries
on business/personally works for gain. I was accompanied by
...............................................................who identified the house to me.

(4) (Otherwise specify the manner in which the petition/replying affidavit/document was
served).

SWORN by the said ............................................this............................................................

day........................................of......................................, 20.......................

Before me..........................................................................................

A Commissioner of Oaths/Magistrate.
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FORM C (r. 22(3)

SUBSTITUTED SERVICE BY ADVERTISEMENT

To:.......................................................................................................................

of.........................................................................................................................

Take notice that a petition has been filed in the .................Court at .................in Civil Suit
No. ...........of 20 ............, in which you are named as respondent. Service of the petition
on you has been ordered by means of this advertisement. A copy of the petition may be
obtained from the court at..........

(insert postal address of registry).

And further take notice that, unless you enter an appearance within ................ days, the
case will be heard in your absence.

_________________________

FORM D

Title
(as in the Petition)

NOTICE OF MOTION

TAKE NOTICE THAT that this Honourable Court Shall be moved on

the...................................day of............................................ 20 at 9:00 o'clock in the
forenoon or as soon thereafter as the applicant/counsel for the applicant may be heard on
an application FOR ORDERS: -

(a)

(b)

WHICH APPLICATION is made on the following grounds: -

(i) ......................................................................................................................

(ii) .....................................................................................................................

(iii) ....................................................................................................................

AND WHICH APPLICATION is supported by the annexed affidavit of and by

such other grounds, reasons and arguments as shall be adduced at the hearing hereof.

DATED at ........................................ this day of ...........................................20.................

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APPLICANT/ADVOCATES FOR THE APPLICANTS

Drawn and filed by:

To be served upon:

“If any person served does not appear at the time and place abovementioned such orders
shall be made and proceedings taken as the court deems just and expedient”.

Dated 25th day of June, 2013.

WILLY MUTUNGA,
Chief Justice.

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