How to File a Constitutional Petition in Kenya: Process and Requirements

The Constitution of Kenya, 2010 contains one of the most progressive Bills of Rights in the world. It also gives every person a direct and accessible way to enforce it: the constitutional petition. Whether a government decision threatens your livelihood, a law appears to violate fundamental rights, or a public body has acted beyond its powers, a constitutional petition can provide a remedy. This guide explains who can file a petition, where to file it, what it must contain and how the process works.

Key takeaways

Under Article 22, every person can go to court claiming that a right in the Bill of Rights has been denied, violated, infringed or threatened.
Under Article 258, every person can also go to court claiming that the Constitution has been contravened or is threatened.
Petitions are generally filed in the High Court, which has jurisdiction under Article 23 and Article 165; the Employment and Labour Relations Court and the Environment and Land Court hear petitions within their areas.
The procedure is governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, known as the Mutunga Rules.
A petition must set out with reasonable precision the rights violated and how they were violated.

Who can file a constitutional petition?

The Constitution has greatly widened access to justice. Under Article 22(2), proceedings may be brought by:

a person acting in their own interest;
a person acting on behalf of another person who cannot act in their own name;
a person acting as a member of, or in the interest of, a group or class of persons;
a person acting in the public interest; and
an association acting in the interest of one or more of its members.

This means that you do not need to show personal harm to bring a public interest petition. Formalities must be kept to a minimum, and the court may accept informal documentation, especially from unrepresented petitioners. No fee may be charged for commencing the proceedings beyond what is reasonable.

Which court should you file in?

Court	Petitions it hears
High Court (Constitutional and Human Rights Division in Nairobi, and High Court stations countrywide)	Most petitions on violations of the Bill of Rights, the validity of laws and the conduct of public bodies
Employment and Labour Relations Court	Petitions arising from employment and labour relations, such as rights violations by employers
Environment and Land Court	Petitions on the environment, land use, occupation and title, including the right to a clean and healthy environment

The Supreme Court does not hear petitions at first instance on Bill of Rights violations, except in its specific original jurisdiction, such as presidential election petitions. Appeals from the High Court go to the Court of Appeal, and then to the Supreme Court as of right in cases involving the interpretation or application of the Constitution.

Before you file: key principles

Precision

Kenyan courts have long held, following Anarita Karimi Njeru v Republic (1979) and the Court of Appeal's decision in Mumo Matemu v Trusted Society of Human Rights Alliance (2013), that a petition must state with reasonable precision the provisions of the Constitution said to be infringed and the manner of the infringement. Vague petitions are often dismissed.

Exhaustion of other remedies

Where a statute provides a specific dispute resolution mechanism, such as a tribunal or an internal appeal, the court will usually expect the petitioner to use it first. Courts will only depart from this rule in exceptional circumstances, for example where the alternative mechanism cannot provide an effective remedy.

Constitutional avoidance

Courts will not decide a constitutional issue if the dispute can be resolved on another basis, such as a contract or ordinary statute. A constitutional petition should not be used to disguise a purely private or commercial claim.

Timing

There is no fixed limitation period for constitutional petitions, but unreasonable delay can lead the court to refuse relief. Act promptly, particularly where urgent orders are needed.

What a petition must contain

Rule 10 of the Mutunga Rules requires a petition to include:

the petitioner's name and address;
the facts relied upon;
the constitutional provisions violated;
the nature of the injury caused or likely to be caused to the petitioner or the persons in whose name the petition is filed;
details of any previous related case and whether it was resolved;
the petition must be signed by the petitioner or their advocate; and
the relief sought.

The petition is usually supported by an affidavit setting out the facts, with relevant documents attached as exhibits.

Step-by-step: the petition process

Step 1: Gather evidence and identify the respondents

Collect documents, correspondence, photographs and witness information. Identify the correct respondents, such as the relevant ministry, county government, state agency or the Attorney General, and any interested parties.

Step 2: Draft the petition and supporting affidavit

Set out the facts clearly, link each fact to the right violated, and state precisely the orders you want the court to make.

Step 3: Apply for urgent orders if needed

Where harm is imminent, for example a planned demolition or the implementation of a contested law, file a notice of motion with a certificate of urgency seeking conservatory orders. The court considers whether the petitioner has a prima facie case with a likelihood of success, whether they will suffer prejudice if orders are not granted, and the public interest.

Step 4: File the petition

Petitions are filed through the Judiciary's electronic filing system, and court fees are paid online. The court registry will assign a case number.

Step 5: Serve the respondents

Serve the petition and any application on the respondents and file an affidavit of service. The respondents then file their responses, usually in the form of replying affidavits or grounds of opposition.

Step 6: Directions and hearing

The court gives directions on the filing of further affidavits and written submissions. Most petitions are heard on the basis of affidavits and written submissions, sometimes followed by oral highlights. Cases raising a substantial question of law may be referred to the Chief Justice to empanel a bench of an uneven number of judges.

Step 7: Judgment and remedies

Under Article 23(3), the court may grant appropriate relief, including a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of a law, an order for compensation and an order of judicial review.

Costs

Costs in constitutional litigation are at the discretion of the court. In genuine public interest cases, courts often order each party to bear its own costs so as not to discourage people from enforcing the Constitution.

Frequently asked questions

Can I file a constitutional petition without a lawyer?

Yes. The Constitution allows any person to file a petition, and formalities are kept to a minimum. However, the requirement of precision and the procedural rules make legal advice highly advisable.

How long does a constitutional petition take?

It depends on the complexity of the case and the court's diary. Urgent applications for conservatory orders can be heard within days, while the full petition may take several months or longer.

Can a petition be filed against a private company?

Yes. The Bill of Rights binds all persons, including private entities, under Article 20(1), although the court will consider whether another remedy is more appropriate.

How W.O.A. Advocates can help

We act for individuals, businesses and organisations in constitutional and public interest litigation, from urgent conservatory applications to appeals. Contact our litigation team to discuss your case.