[2011] KEHC 499 (KLR)
The court held that proceeding with the petition would amount to a collateral challenge to the validity of the Constitution of Kenya, 2010, which is expressly prohibited by Article 2(3) of the Constitution. The Constitution Review Act, 2008, having served its purpose with the promulgation of the new Constitution, is...
Source-derived case information.
- Citation
- [2011] KEHC 499 (KLR)
- Parties
- Applicant: Kamau Chege Daniel; Applicant: Cosmus Kipkemoi Ngeno Koech; Respondent: The Hon. Attorney General; Respondent: The Interim Independent Electoral Commission; Respondent: The Committee of Experts
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 166 of 2010
- Procedural Posture
- Constitutional Petition / Ruling
- Outcome
- petition dismissed
- Judges
- DAS Majanja
- Legal Topics
- Constitutional Review, Referendum Process, Freedom of Expression, Challenge to Legislation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kamau Chege Daniel
Applicant
Cosmus Kipkemoi Ngeno Koech
Applicant
The Hon. Attorney General
Respondent
The Interim Independent Electoral Commission
Respondent
The Committee of Experts
Respondent
Procedural Posture
Constitutional Petition / Ruling
Legal Issues
- 1 Whether Section 37(3) of the Constitution Review Act, 2008 infringes on the freedom of expression by limiting voter options in a referendum.
- 2 Whether the court can entertain a challenge to the validity of the Constitution of Kenya, 2010 under Article 2(3).
Ratio Decidendi
The court held that proceeding with the petition would amount to a collateral challenge to the validity of the Constitution of Kenya, 2010, which is expressly prohibited by Article 2(3) of the Constitution. The Constitution Review Act, 2008, having served its purpose with the promulgation of the new Constitution, is now exhausted and cannot be the subject of further litigation. The court therefore dismissed the petition, finding no legal basis to grant the reliefs sought by the applicants.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
PETITION JR NO. 166 OF 2010
IN THE MATTER OF SECTION 84(1) AND 84(2) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTION 3 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION 79(1), 79(2) AND
SECTION 78(1) OF THE CONSTITUTIONAL REVIEW ACT 2008
AND
IN THE MATTER OF SECTION 37(3) OF THE CONSTITUTIONAL REVIEW ACT 2008
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF RIGHTS AND
FREEDOMS OF INDIVIDUALS) HIGH COURT PRACTICE AND PROCEDURE RULES 2006 RULES 11, 12, 13, 14 AND 32
AND
IN THE MATTER OF THE PETITIONERSKAMAU CHEGE DANIEL AND COSMUS KIPKEMOI NG’ENO KOECH
BETWEEN
KAMAU CHEGE DANIEL........................................................................................................1ST PETITIONER
COSMUS KIPKEMOI NGENO KOECH................................................................................2ND PETITIONER
AND
THE HON. ATTORNEY GENERAL.....................................................................................1ST RESPONDENT
THE INTERIM INDEPENDENTELECTORAL COMMISSION........................................2ND RESPONDENT
THE COMMITTEE OF EXPERTS.....................................................................................3RD RESPONDENT
RULING
1. The Petition filed herein seeks the following prayers, inter-alia,
i.THAT Section 37(3) of the Constitution Review Act, 2008 be declared null and void to the extent that it limits the options and or alternatives available to a voter to vote yes or no hence constitutes an infringement on the freedom of expression and or opinion or thought.
2. The Constitution Review Act, 2008 provided a framework for the review of the former Constitution leading up to the adoption, by referendum and promulgation of the Constitution of Kenya, 2010.
3. Article 2(3) of the Constitution of Kenya, 2010 provides that, “the validity or legality of this Constitution is not subject to challenge by or before any court or other state organ”. In my view, to proceed with this matter is to mount a collateral challenge on the validity of the Constitution, a matter which is prohibited by Article 2(3).
4. Further, the Constitution Review Act, 2008, is now exhausted and nothing further can be gained from proceeding with this matter. I, of course, sympathise with the Petitioners who could not be heard urgently on their matter despite having the matter certified as urgent in April 2010. I must dismiss this matter and it is hereby dismissed with no order as to costs.
DATEDat NAIROBI this 21st day of October, 2011.
D.S. MAJANJA
JUDGE
21. 10. 2011
Coram: Majanja J
Nazi Court clerk
Mr. K. Muhoro for the Respondent
Order:- Ruling read n open court.
D.S. MAJANJA
JUDGE