LAWS OF KENYA

THE CONSTITUTION OF KENYA

Revised Edition 2022 Printed and Published by the Government Printer Nairobi

[Rev. 2022] Constitution of Kenya 3

Article

THE CONSTITUTION OF KENYA ARRANGEMENT OF ARTICLES

CHAPTER ONE

SOVEREIGNTY OF THE PEOPLE AND SUPREMACY OF THIS CONSTITUTION

• Sovereignty of the people.
• Supremacy of this Constitution.
• Defence of this Constitution.

CHAPTER TWO

THE REPUBLIC

• Declaration of the Republic.
• Territory of Kenya.
• Devolution and access to services.
• National, official and other languages.
• State and religion.
• National symbols and national days.
• National values and principles of governance.
• Culture.

CHAPTER THREE

CITIZENSHIP

• Entitlements of citizens.
• Retention and acquisition of citizenship.
• Citizenship by birth.
• Citizenship by registration.
• Dual citizenship.
• Revocation of citizenship.
• Legislation on citizenship.

CHAPTER FOUR

THE BILL OF RIGHTS

PART 1 – GENERAL PROVISIONS TO THE BILL OF RIGHTS

• Rights and fundamental freedoms.
• Application of Bill of Rights.
• Implementation of rights and fundamental freedoms.
• Enforcement of Bill of Rights.
• Authority of courts to uphold and enforce the Bill of Rights.
• Limitation of rights and fundamental freedoms.

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• Fundamental Rights and freedoms that may not be limited.

PART 2 – RIGHTS AND FUNDAMENTAL FREEDOMS

• Right to life.
• Equality and freedom from discrimination.
• Human dignity.
• Freedom and security of the person.
• Slavery, servitude and forced labour.
• Privacy.
• Freedom of conscience, religion, belief and opinion.
• Freedom of expression.
• Freedom of the media.
• Access to information.
• Freedom of association.
• Assembly, demonstration, picketing and petition.
• Political rights.
• Freedom of movement and residence.
• Protection of right to property.
• Labour relations.
• Environment.
• Economic and social rights.
• Language and culture.
• Family.
• Consumer rights.
• Fair administrative action.
• Access to justice.
• Rights of arrested persons.
• Fair hearing.
• Rights of persons detained, held in custody or imprisoned.

PART 3 – SPECIFIC APPLICATION OF RIGHTS

• Interpretation of this Part.
• Children.
• Persons with disabilities.
• Youth.
• Minorities and marginalised groups.
• Older members of society.

PART 4 – STATE OF EMERGENCY

• State of emergency.

PART 5 – KENYA NATIONAL HUMAN RIGHTS AND EQUALITY COMMISSION

• Kenya National Human Rights and Equality Commission.

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CHAPTER FIVE

LAND AND ENVIRONMENT

PART 1 – LAND

• Principles of land policy.
• Classification of land.
• Public land.
• Community land.
• Private land.
• Landholding by non-citizens.
• Regulation of land use and property.
• National Land Commission.
• Legislation on land.

PART 2 – ENVIRONMENT AND NATURAL RESOURCES

• Obligations in respect of the environment.
• Enforcement of environmental rights.
• Agreements relating to natural resources.
• Legislation relating to the environment.

CHAPTER SIX

LEADERSHIP AND INTEGRITY

• Responsibilities of leadership.
• Oath of office of State officers.
• Conduct of State officers.
• Financial probity of State officers.
• Restriction on activities of State officers.
• Citizenship and leadership.
• Legislation to establish the ethics and anti-corruption commission.
• Legislation on leadership.

CHAPTER SEVEN

REPRESENTATION OF THE PEOPLE

PART 1 – ELECTORAL SYSTEM AND PROCESS

• General principles for the electoral system.
• Legislation on elections.
• Registration as a voter.
• Candidates for election and political parties to comply with code of conduct.
• Eligibility to stand as an independent candidate.
• Voting.
• Electoral disputes.

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PART 2 – INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND DELIMITATION OF ELECTORAL UNITS

• Independent Electoral and Boundaries Commission.
• Delimitation of electoral units.
• Allocation of party list seats.

PART 3 – POLITICAL PARTIES

• Basic requirements for political parties.
• Legislation on political parties.

CHAPTER EIGHT

THE LEGISLATURE

PART 1 – ESTABLISHMENT AND ROLE OF PARLIAMENT

• Establishment of Parliament.
• Role of Parliament.
• Role of the National Assembly.
• Role of the Senate.

PART 2 – COMPOSITION AND MEMBERSHIP OF PARLIAMENT

• Membership of the National Assembly.
• Membership of the Senate.
• Qualifications and disqualifications for election as member of Parliament.
• Promotion of representation of marginalised groups.
• Election of members of Parliament.
• Term of Parliament.
• Vacation of office of member of Parliament.
• Right of recall.
• Determination of questions of membership.

PART 3 – OFFICES OF PARLIAMENT

• Speakers and Deputy Speakers of Parliament.
• Presiding in Parliament.
• Party leaders.

PART 4 – PROCEDURES FOR ENACTING LEGISLATION

• Exercise of legislative powers.
• Bills concerning county government.
• Special Bills concerning county governments.
• Ordinary Bills concerning county governments.
• Mediation committees.
• Money Bills.
• Presidential assent and referral.
• Coming into force of laws.

PART 5 – PARLIAMENT'S GENERAL PROCEDURES AND RULES

• Powers, privileges and immunities.
• Public access and participation.

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• Right to petition Parliament.
• Official languages of Parliament.
• Quorum.
• Voting in Parliament.
• Decisions of Senate.
• Committees and Standing Orders.
• Power to call for evidence.

PART 6 – MISCELLANEOUS

• Location of sittings of Parliament.
• Parliamentary Service Commission.
• Clerks and staff of Parliament.

CHAPTER NINE

THE EXECUTIVE

PART 1 – PRINCIPLES AND STRUCTURE OF THE NATIONAL EXECUTIVE

• Principles of executive authority.
• The National Executive.

PART 2 – THE PRESIDENT AND DEPUTY PRESIDENT

• Authority of the President.
• Functions of the President.
• Power of mercy.
• Exercise of presidential powers during temporary incumbency.
• Decisions of the President.
• Election of the President.
• Qualifications and disqualifications for election as President.
• Procedure at presidential election.
• Death before assuming office.
• Questions as to validity of presidential election.
• Assumption of office of President.
• Term of office of President.
• Protection from legal proceedings.
• Removal of President on grounds of incapacity.
• Removal of President by impeachment.
• Vacancy in the office of President.
• Functions of the Deputy President.
• Election and swearing-in of Deputy President.
• Vacancy in the office of Deputy President.
• Removal of Deputy President.
• Remuneration and benefits of President and Deputy President.

PART 3 – THE CABINET

• Cabinet.
• Decisions, responsibility and accountability of the Cabinet.

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• Secretary to the Cabinet.
• Principal Secretaries.

PART 4 – OTHER OFFICES

• Attorney-General.
• Director of Public Prosecutions.
• Removal and resignation of Director of Public Prosecutions.

CHAPTER TEN

JUDICIARY

PART 1 – JUDICIAL AUTHORITY AND LEGAL SYSTEM

• Judicial authority.
• Independence of the Judiciary.
• Judicial offices and officers.
• System of courts.

PART 2 – SUPERIOR COURTS

• Supreme Court.
• Court of Appeal.
• High Court.
• Appointment of Chief Justice, Deputy Chief Justice and other judges.
• Tenure of office of the Chief Justice and other judges.
• Removal from office.

PART 3 – SUBORDINATE COURTS

• Subordinate courts.
• Kadhis’ courts.

PART 4 – JUDICIAL SERVICE COMMISSION

• Establishment of the Judicial Service Commission.
• Functions of the Judicial Service Commission.
• Judiciary Fund.

CHAPTER ELEVEN

DEVOLVED GOVERNMENT

PART 1 – OBJECTS AND PRINCIPLES OF DEVOLVED GOVERNMENT

• Objects of devolution.
• Principles of devolved government.

PART 2 – COUNTY GOVERNMENTS

• County governments.
• Membership of county assembly.
• Speaker of a county assembly.
• County executive committees.
• Election of county governor and deputy county governor.
• Removal of a county governor.
• Vacancy in the office of county governor.

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• Functions of county executive committees.
• Urban areas and cities.
• Legislative authority of county assemblies.

PART 3 – FUNCTIONS AND POWERS OF COUNTY GOVERNMENTS

• Respective functions and powers of national and county governments.
• Transfer of functions and powers between levels of government.

PART 4 – THE BOUNDARIES OF COUNTIES

• Boundaries of counties.

PART 5 – RELATIONSHIP BETWEEN GOVERNMENTS

• Cooperation between national and county governments.
• Support for county governments.
• Conflict of laws.

PART 6 – SUSPENSION OF COUNTY GOVERNMENTS

• Suspension of a county government.

PART 7 – GENERAL

• Qualifications for election as member of county assembly.
• Vacation of office of member of county assembly.
• County assembly power to summon witnesses.
• Public participation and county assembly powers, privileges and immunities.
• County assembly gender balance and diversity.
• County government during transition.
• Publication of county legislation.
• Legislation on Chapter.

CHAPTER TWELVE

PUBLIC FINANCE

PART I – PRINCIPLES AND FRAMEWORK OF PUBLIC FINANCE

• Principles of public finance.
• Equitable sharing of national revenue.
• Equitable share and other financial laws.
• Equalisation Fund.
• Consultation on financial legislation affecting counties.

PART 2 – OTHER PUBLIC FUNDS

• Consolidated Fund and other public funds.
• Revenue Funds for county governments.
• Contingencies Fund.

PART 3 – REVENUE-RAISING AND THE PUBLIC DEBT

• Power to impose taxes and charges.
• Imposition of tax.
• Borrowing by national government.
• Borrowing by counties.
• Loan guarantees by national government.

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• Public debt.

PART 4 – REVENUE ALLOCATION

• Commission on Revenue Allocation.
• Functions of the Commission on Revenue Allocation.
• Division of revenue.
• Annual Division and Allocation of Revenue Bills.
• Transfer of equitable share.

PART 5 – BUDGETS AND SPENDING

• Form, content and timing of budgets.
• Budget estimates and annual Appropriation Bill.
• Expenditure before annual budget is passed.
• Supplementary appropriation.
• County appropriation Bills.

PART 6 – CONTROL OF PUBLIC MONEY

• Financial control.
• Accounts and audit of public entities.
• Procurement of public goods and services.

PART 7 – FINANCIAL OFFICERS AND INSTITUTIONS

• Controller of Budget.
• Auditor-General.
• Salaries and Remuneration Commission.
• Central Bank of Kenya.

CHAPTER THIRTEEN

THE PUBLIC SERVICE

PART 1 – VALUES AND PRINCIPLES OF PUBLIC SERVICE

• Values and principles of public service.

PART 2 – THE PUBLIC SERVICE COMMISSION

• The Public Service Commission.
• Functions and powers of the Public Service Commission.
• Staffing of county governments.
• Protection of public officers.

PART 3 – TEACHERS SERVICE COMMISSION

• Teachers Service Commission.

CHAPTER FOURTEEN

NATIONAL SECURITY

PART 1 – NATIONAL SECURITY ORGANS

• Principles of national security.
• National security organs.
• Establishment of the National Security Council.

PART 2 – THE KENYA DEFENCE FORCES

• Establishment of Kenya Defence Forces and Defence Council.

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PART 3 – THE NATIONAL INTELLIGENCE SERVICE

• Establishment of National Intelligence Service.

PART 4 – THE NATIONAL POLICE SERVICE

• Establishment of the National Police Service.
• Objects and functions of the National Police Service.
• Command of the National Police Service.
• National Police Service Commission.
• Other police services.

CHAPTER FIFTEEN

COMMISSIONS AND INDEPENDENT OFFICES

• Application of Chapter.
• Objects, authority and funding of commissions and independent offices.
• Composition, appointment and terms of office.
• Removal from office.
• General functions and powers.
• Incorporation of commissions and independent offices.
• Reporting by commissions and independent offices.

CHAPTER SIXTEEN

AMENDMENT OF THIS CONSTITUTION

• Amendment of this Constitution.
• Amendment by parliamentary initiative.
• Amendment by popular initiative.

CHAPTER SEVENTEEN

GENERAL PROVISIONS

• Enforcement of this Constitution.
• Construing this Constitution.
• Interpretation.

CHAPTER EIGHTEEN

TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

• Consequential legislation.
• Transitional and consequential provisions.
• Effective Date.
• Repeal of previous Constitution.

• FIRST SCHEDULE — COUNTIES
• SECOND SCHEDULE — NATIONAL SYMBOLS
• THIRD SCHEDULE — NATIONAL OATHS AND AFFIRMATIONS

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• FOURTH SCHEDULE — DISTRIBUTION OF FUNCTIONS BETWEEN THE NATIONAL GOVERNMENT AND THE COUNTY GOVERNMENTS
• FIFTH SCHEDULE — LEGISLATION TO BE ENACTED BY PARLIAMENT
• SIXTH SCHEDULE — TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

[Rev. 2022] Constitution of Kenya 13 THE CONSTITUTION OF KENYA Commencement: 27th August, 2010

PREAMBLE

We, the people of Kenya—

• ACKNOWLEDGING the supremacy of the Almighty God of all creation:
• HONOURING those who heroically struggled to bring freedom and justice to our land:
• PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation:
• RESPECTFUL of the environment, which is our heritage, and determined to sustain it for the benefit of future generations:
• COMMITTED to nurturing and protecting the well-being of the individual, the family, communities and the nation:
• RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law:
• EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution:
• ADOPT, ENACT and give this Constitution to ourselves and to our future generations.

GOD BLESS KENYA

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CHAPTER ONE

SOVEREIGNTY OF THE PEOPLE AND SUPREMACY OF THIS CONSTITUTION

Sovereignty of the people.

(1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives. (3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution—

• (a) Parliament and the legislative assemblies in the county governments;
• (b) the national executive and the executive structures in the county governments; and
• (c) the Judiciary and independent tribunals.

(4) The sovereign power of the people is exercised at—

• (a) the national level; and
• (b) the county level.

Supremacy of this Constitution.

(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. (2) No person may claim or exercise State authority except as authorised under this Constitution. (3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ. (4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. (5) The general rules of international law shall form part of the law of Kenya. (6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

Defence of this Constitution.

(1) Every person has an obligation to respect, uphold and defend this Constitution. (2) Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.

CHAPTER TWO

THE REPUBLIC

Declaration of the Republic.

(1) Kenya is a sovereign Republic. (2) The Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10.

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Territory of Kenya.

Kenya consists of the territory and territorial waters comprising Kenya on the effective date, and any additional territory and territorial waters as defined by an Act of Parliament.

Devolution and access to services.

(1) The territory of Kenya is divided into the counties specified in the First Schedule. (2) The governments at the national and county levels are distinct and inter- dependent and shall conduct their mutual relations on the basis of consultation and cooperation. (3) A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.

National, official and other languages.

(1) The national language of the Republic is Kiswahili. (2) The official languages of the Republic are Kiswahili and English. (3) The State shall—

• (a) promote and protect the diversity of language of the people of Kenya; and
• (b) promote the development and use of indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities.

State and religion.

There shall be no State religion.

National symbols and national days.

(1) The national symbols of the Republic are—

• (a) the national flag;
• (b) the national anthem;
• (c) the coat of arms; and
• (d) the public seal.

(2) The national symbols are as set out in the Second Schedule. (3) The national days are—

• (a) Madaraka Day, to be observed on 1st June;
• (b) Mashujaa Day, to be observed on 20th October; and
• (c) Jamhuri Day, to be observed on 12th December.

(4) A national day shall be a public holiday. (5) Parliament may enact legislation prescribing other public holidays, and providing for observance of public holidays.

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National values and principles of governance.

(1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—

• (a) applies or interprets this Constitution;
• (b) enacts, applies or interprets any law; or
• (c) makes or implements public policy decisions.

(2) The national values and principles of governance include—

• (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
• (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
• (c) good governance, integrity, transparency and accountability; and
• (d) sustainable development.

Culture.

(1) This Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. (2) The State shall—

• (a) promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage;
• (b) recognise the role of science and indigenous technologies in the development of the nation; and
• (c) promote the intellectual property rights of the people of Kenya.

(3) Parliament shall enact legislation to—

• (a) ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and
• (b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

CHAPTER THREE

CITIZENSHIP

Entitlements of citizens.

(1) Every citizen is entitled to—

• (a) the rights, privileges and benefits of citizenship, subject to the limits provided or permitted by this Constitution; and
• (b) a Kenyan passport and any document of registration or identification issued by the State to citizens.

(2) A passport or other document referred to in clause (1)(b) may be denied, suspended or confiscated only in accordance with an Act of Parliament that satisfies the criteria referred to in Article 24.

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Retention and acquisition of citizenship.

(1) Every person who was a citizen immediately before the effective date retains the same citizenship status as of that date. (2) Citizenship may be acquired by birth or registration. (3) Citizenship is not lost through marriage or the dissolution of marriage.

Citizenship by birth.

(1) A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen. (2) Clause (1) applies equally to a person born before the effective date, whether or not the person was born in Kenya, if either the mother or father of the person is or was a citizen. (3) Parliament may enact legislation limiting the effect of clauses (1) and (2) on the descendents of Kenyan citizens who are born outside Kenya. (4) A child found in Kenya who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth. (5) A person who is a Kenyan citizen by birth and who has ceased to be a Kenyan citizen because the person acquired citizenship of another country, is entitled on application to regain Kenyan citizenship.

Citizenship by registration.

(1) A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen. (2) A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen. (3) A child who is not a citizen, but is adopted by a citizen, is entitled on application to be registered as a citizen. (4) Parliament shall enact legislation establishing conditions on which citizenship may be granted to individuals who are citizens of other countries. (5) This Article applies to a person as from the effective date, but any requirements that must be satisfied before the person is entitled to be registered as a citizen shall be regarded as having been satisfied irrespective of whether the person satisfied them before or after the effective date, or partially before, and partially after, the effective date.

Dual citizenship.

A citizen by birth does not lose citizenship by acquiring the citizenship of another country.

Revocation of citizenship.

(1) If a person acquired citizenship by registration, the citizenship may be revoked if—

• (a) the person acquired the citizenship by fraud, false representation or concealment of any material fact;

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• (b) the person has, during any war in which Kenya was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was knowingly carried on in such a manner as to assist an enemy in that war;
• (c) the person has, within five years after registration, been convicted of an offence and sentenced to imprisonment for a term of three years or longer; or
• (d) the person has, at any time after registration, been convicted of treason, or of an offence for which—
  • (i) a penalty of at least seven years imprisonment may be imposed; or
  • (ii) a more severe penalty may be imposed.

(2) The citizenship of a person who was presumed to be a citizen by birth, as contemplated in Article 14(4), may be revoked if—

• (a) the citizenship was acquired by fraud, false representation or concealment of any material fact by any person;
• (b) the nationality or parentage of the person becomes known, and reveals that the person was a citizen of another country; or
• (c) the age of the person becomes known, and reveals that the person was older than eight years when found in Kenya.

Legislation on citizenship.

Parliament shall enact legislation—

• (a) prescribing procedures by which a person may become a citizen;
• (b) governing entry into and residence in Kenya;
• (c) providing for the status of permanent residents;
• (d) providing for voluntary renunciation of citizenship;
• (e) prescribing procedures for revocation of citizenship;
• (f) prescribing the duties and rights of citizens; and
• (g) generally giving effect to the provisions of this Chapter.

CHAPTER FOUR

THE BILL OF RIGHTS

PART 1 – GENERAL PROVISIONS TO THE BILL OF RIGHTS

Rights and fundamental freedoms.

(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. (2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. (3) The rights and fundamental freedoms in the Bill of Rights—

• (a) belong to each individual and are not granted by the State;

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• (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and
• (c) are subject only to the limitations contemplated in this Constitution.

Application of Bill of Rights.

(1) The Bill of Rights applies to all law and binds all State organs and all persons. (2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. (3) In applying a provision of the Bill of Rights, a court shall—

• (a) develop the law to the extent that it does not give effect to a right or fundamental freedom; and
• (b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom.

(4) In interpreting the Bill of Rights, a court, tribunal or other authority shall promote—

• (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and
• (b) the spirit, purport and objects of the Bill of Rights.

(5) In applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles—

• (a) it is the responsibility of the State to show that the resources are not available;
• (b) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and
• (c) the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion.

Implementation of rights and fundamental freedoms.

(1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. (2) The State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under Article 43. (3) All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.

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(4) The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.

Enforcement of Bill of Rights.

(1) 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 or infringed, or is threatened. (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

• (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; or
• (d) an association acting in the interest of one or more of its members.

(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that—

• (a) the rights of standing provided for in clause (2) are fully facilitated;
• (b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
• (c) no fee may be charged for commencing the proceedings;
• (d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and
• (e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.

(4) The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this Article, and to have the matter heard and determined by a court.

Authority of courts to uphold and enforce the Bill of Rights.

(1) The High Court has jurisdiction, in accordance with Article 165, 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. (2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts 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. (3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—

• (a) a declaration of rights;
• (b) an injunction;
• (c) a conservatory order;

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• (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
• (e) an order for compensation; and
• (f) an order of judicial review.

Limitation of rights and fundamental freedoms.

(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

• (a) the nature of the right or fundamental freedom;
• (b) the importance of the purpose of the limitation;
• (c) the nature and extent of the limitation;
• (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
• (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—

• (a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
• (b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
• (c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied. (4) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance. (5) Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service—

• (a) Article 31 — Privacy;
• (b) Article 36 — Freedom of association;
• (c) Article 37 — Assembly, demonstration, picketing and petition;
• (d) Article 41 — Labour relations;
• (e) Article 43 — Economic and social rights; and

22 Constitution of Kenya [Rev. 2022]

• (f) Article 49 — Rights of arrested persons.

Fundamental Rights and freedoms that may not be limited.

Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—

• (a) freedom from torture and cruel, inhuman or degrading treatment or punishment;
• (b) freedom from slavery or servitude;
• (c) the right to a fair trial; and
• (d) the right to a fair hearing.