Mathare Social Justice Centre & another v Bore, Cabinet Secretary for Labour & Social Protection & 8 others

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E098 OF 2024** **IN THE MATTER OF VIOLATION OF ARTICLES 1, 2(1) & (4), 3(1), 10, 19, 20, 21(1), (3) & (4), 22(1), 23(1), (3), 24, 35(1), 36, 165(3)(a) & (b), 174, 186(2), 244, 258(1) & (2) AND 259(1) OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE DEFINITION OF A COMMUNITY GROUP UNDER SECTION 2, SECTIONS 3(2)(c), 5, 10(2) & (3), 12, 13, 14 AND THE SECOND SCHEDULE OF THE COMMUNITY GROUPS REGISTRATION ACT** **AND** **IN THE MATTER OF CONTRAVENING SECTIONS 2, 5A(1) & (2) AND 26 OF THE STATUTORY INSTRUMENTS ACT** **BETWEEN** **MATHARE SOCIAL JUSTICE CENTRE….....………...1ST PETITIONER** **KATIBA INSTITUTE………..………………….…….2ND PETITIONER** **VERSUS** **FLORENCE BORE, CABINET SECRETARY FOR** **LABOUR & SOCIAL PROTECTION………...…...…1ST RESPONDENT** **SHADRACK MWANGOLO MWADIME,** **PRINCIPAL SECRETARY FOR** **LABOUR & SOCIAL PROTECTION...…..……….…2ND RESPONDENT** **DIRECTOR OF SOCIAL DEVELOPMENT,** **NAIROBI CITY COUNTY…………………………….3RD RESPONDENT** **COUNTY COORDINATOR OF SOCIAL DEVELOPMENT** **NAIROBI CITY COUNTY……………...……………..4TH RESPONDENT** **CAROLINE NZIU, SUB COUNTY SOCIAL** **DEVELOPMENT OFFICER,** **MATHARE SUB COUNTY…………………………...5TH RESPONDENT** **ATTORNEY GENERAL……………………………….6TH RESPONDENT** **NATIONAL ASSEMBLY…………………..………….7TH RESPONDENT** **SENATE……………………………………...…………..8TH RESPONDENT** **AND** **INTERNATIONAL COMMISSION OF** **JURISTS (ICJ-KENYA) …………………………. INTERESTED PARTY** **JUDGMENT** **Introduction** 1. The petition dated 27th February 2024 is supported by the petitioners’ affidavit in support. 2. The petition challenges the constitutionality of the **Community Groups Registration Act.** The petitioner contends that it has vague and overbroad provisions that confer upon the Director of Social Development unfettered discretion enabling arbitrary and subjective decision making to the detriment of community groups. The petitioner avers such direction has already been exercised against the 1st Petitioner herein. In addition, the Act was enacted without adequate public participation and impermissibly authorises usurpation of an express constitutional mandate reserved to County Governments. 3. Consequently, the petitioners seek the following reliefs: - 4. **A declaration that the Community Groups Registration Act (CGRA) is void in its entirety because it: -** 5. **Was enacted without sufficient public participation in violation of Articles 10 and 118 of the Constitution and is void.** 6. **Violates the principles of devolved government and assigns to the national government functions that the Constitution had devolved to county governments.** 7. **A declaration that the definition of ‘community group’ in Section 2 of the CGRA is void because it violates the rule of law and is** **impermissibly vague.** 8. **A declaration that Section 3(1) of the CGRA is void because it violates the rule of law and is impermissibly vague.** 9. **A declaration that Section 3(2)(c) of the CGRA is void because it:** 10. **Violates Articles 32 and 33 of the Constitution, and** 11. **Imposes or threatens to impose an unconstitutional limitation on the exercise of rights or fundamental freedoms in violation of Article 24.** 12. **A declaration that Sections 6(e) and (h) of the CGRA violates Articles 32, 33 and 36 of the Constitution because they:** 13. **Give social development community groups the authority to monitor, investigate and influence the activities of community groups** 14. **Impose or threaten to impose a limitation on the exercise of rights or fundamental freedoms in violation of Article 24.** 15. **A declaration that Section 12(b) of the CGRA is void because it violates the rule of law and is impermissibly vague.** 16. **A declaration that Sections 12-14 of the CGRA are void because they violate Articles 36 and 47 of the Constitution.** 17. **A declaration that the 2nd respondent violated Article 35 of the Constitution when it failed to respond to Katiba Institute’s access to information letter.** 18. **A declaration that the 1st respondent has violated Sections 2 and 5A of the Statutory Instruments Act.** 19. **A declaration that the 1st respondent has violated Section 26(1) of the Statutory Instruments Act.** 20. **An order of certiorari bringing into this Court and quashing the new revised application form adopted by the respondents.** 21. **A declaration that the 5th respondent has violated the Mathare Social Justice Centre’s rights to freedom of conscience, religion, belief and opinion, freedom of expression, and freedom of association under Articles 32, 33 and 36 of the Constitution.** 22. **A declaration that all orders issued by various sub county social development officers rejecting applications by community groups for registration and renewal of registration which were rejected under Sections 9, 12 and 14 of the CGRA are null and void.** 23. **An order by means of structural interdict compelling the 6th through 8th respondents to develop a program for building the capacity and technical skills of county governments to effectively carry out the devolved functions under Part 2(14) of the Fourth Schedule of the Constitution and to submit the program to this Court for approval and oversight.** 24. **An order directing the Attorney general to publish in the gazette the orders regarding the constitutionality of the sections of the CGRA and to exercise its authority under the Revision of Laws Act to omit unconstitutional sections of the CGRA from the Laws of Kenya.** 25. **An order holding the respondents jointly and severally liable for violating the constitution and awarding exemplary, general, consequential and punitive damages as the court deems appropriate.** 26. **Any further orders the court deems just.** 27. In opposition to the petition, the 1st – 6th, 7th and 8th respondents filed Replying Affidavits dated 7th May 2024, 14th October 2024 and 27th March 2024 respectively. **The Petitioners’ Case** 1. The petition starts with the background of the Community Groups Registration Act. It was first read before the National Assembly in June 2021 as a Bill. Thereafter, it was presented to the National Assembly’s Departmental Committee on Labour and Social Welfare (the National Assembly Committee) which submitted its report to the National Assembly in October 2021. 2. The report included a section on public participation which only contained submissions by State organs with stakeholders stated as Ministry of Labour and Social Protection, the Ministry of Interior and Coordination and the Non-Governmental Organization Coordination Board. Not a single non government actor was identified as a stakeholder in the legislation. 3. The Committee report stated that on 11th June 2021, a notice was placed in the Daily Nation requesting the submission of memoranda via written comments which had to be emailed or hand delivered to the National Assembly. However, the said report did not indicate whether it received any written comments from the public. 4. The Council of Governors (COG) and the Ministry of Public Service Gender Senior Citizen Affairs and Special Programmes (Ministry of Labour and Social Services) submitted comments to the National Assembly Committee. 5. The Council of Governors (COG) raised concerns regarding the proper allocation of functions between national and county governments. The COG noted that Part 2 of the Second Schedule of the Constitution devolves social and community mobilisation to the counties. Part 2(14) of the Second Schedule states that functions of the county governments include: *ensuring and coordinating the participation of communities and locations in governance at the local level and assisting communities and locations to develop the administrative capacity for the effective exercise of the functions and powers and participation in governance at the local level.* Further, the COG noted that the Transition Authority established under the Transition to Devolved Government Act had unbundled the functions delegated to counties under Part 14 as follows: developing systems, standards and operational procedures for community participation; facilitating formation/restructuring of community level structures for community engagement and participation in developing initiatives; facilitating formation, registration and certification of community groups; undertake community groups capacity building and sensitization and providing grant support to community groups to support upscaling/replication of best practices and facilitation to community capacity support centres. 6. Based on those devolved functions, the ***COG proposed amendments that would apply a standard registration process for all counties but ensure that the remaining functions included in the Bill be delegated to counties***. 7. On its part, the Ministry of Labour and Social Protection proposed recommendations that would increase the national government’s authority. For instance approving, monitoring and evaluating community group budget proposals at the national level and that sub county committees to include members appointed from the national level. The ministry justified its extensive role by stating that the management and operation of group registration is relevant to national security and thus under the purview of the national government. 8. The office of the Attorney General also submitted memoranda to the committee arguing that the policy on registration of community groups falls within the jurisdiction of the Ministry and the CGRA was intended to address the gaps in the legislative framework. The Attorney General further noted that **Article 191 of the Constitution** allows for national legislation to supersede county legislation if certain conditions are satisfied. The conditions included that the national legislation shall apply uniformly throughout Kenya as per **Article 191(2)(a)** and that the national legislation is necessary for the maintenance of national security as set out in **Article 191(3)(c)**. 9. The petitioners aver that the National Assembly Committee rejected nearly all the proposals by the COG and accepted many of the proposals from the Ministry including those that increased the role and authority of the national government. The Committee acknowledged that the registration of the community groups was a function assigned by the Constitution to the County Government. It also claimed that taking away the authority granted to the counties by the Constitution was appropriate because regulating community groups had been done by the Ministry of Labour and Social protection prior to the implementation of the Constitution. 10. In addition to referring to the pre-2010 practice, the National Assembly Committee justified assigning significant responsibility to the national government even though the duties had been devolved to the counties because: the Public Benefits Organizations Act was passed in 2013 but has never been implemented; county governments do not have the capacity to carry out due diligence on registration of community groups; registration of community groups at the county levels is not based on any legislation and there is need for a common legal framework/harmonised legal regime across the country to regulate community groups and specifically for security interest. The National Assembly Committee further latched onto **Articles 191(2)(a) and (3)(c) of the Constitution**, arguing that the constitution allows national legislation to supersede county legislation if certain conditions are satisfied. 11. The National Assembly Committee did not mention its duty under Part 1(32) of the Fourth Schedule of the Constitution to provide capacity building and technical assistance to the counties to ensure that counties could carry out the functions that had been devolved to it. Nor did the committee explain why the relationship between the registration and regulation of community groups and national security was so strong as to override the constitutional requirement that the functions be devolved. 12. Five months after the Committee submitted its report, the Senate’s Standing Committee on Labour and Social Welfare tabled a report concerning the Bill. Like the National Assembly’s Committee report, the stakeholders the Senate engaged only included state agencies being the Ministry of Public Service, Gender, Senior Citizens Affairs and Special Programmes, the Council of Governors and the Non-Governmental Organizations Coordination Board. The Senate Committee Report also published an invitation for submission of memoranda in the Standard asking people to provide written reports within 14 days of the invitation. Other than the invitation for written comments, the Senate Committee does not appear to have made any effort to engage communities about the Community Group Registration Bill. 13. The Senate Committee report also focuses on the extent to which the bill delegated county functions to the National Government. The Senate Committee’s recommendations however were very different from the National Assembly Committee’s as it recognised that the Bill intended to provide a regulatory framework for the mobilisation, registration, co-ordination and regulation of community groups as a national government function even though the constitution allocated those functions to county governments. It further adopted many of the proposals submitted by the COG. Those recommendations maintained a national standard for community group registration but delegated oversight and support functions to the county governments. 14. Following the committee reports, the Bill was presented to the National Assembly and included the proposed amendments by the National Assembly and excluded the proposed amendments from the Senate Committee. The National Assembly passed the Bill on 25th November 2021 and the President assented to it on 6th July 2022. 15. The petitioners contend that there seems to have been an impasse between the Senate and National Assembly Committees since all the recommendations by the Senate Committee are not reflected in the CGRA. There is no indication of whether the two houses reached a consensus on the resultant law or whether the Senate abandoned its concerns regarding the Bill. Even if a consensus had been reached, there is no indication that the national government took steps to build the capacity of county governments or provide technical assistance before the devolved functions under Part 2(14) of the Fourth schedule was taken away by the provisions of the CGRA. 16. The petitioners reveal that the CGRA includes numerous provisions that are so vague and overly broad that they allow for significant government overreach and provide no guidance to community groups about how to remain in compliance with the Act. The overbroad language also gives the Director of Social Development extensive authority to approve or reject community group applications based on vague and subjective criteria. Further the language is coupled with an administrative mechanism that does not address or curtail the potential overreach by the administrators of the CGRA starting with the definition of a community group under **Section 2 of the CGRA**. The phrases ‘champion a political cause’ and ‘contrary to public policy’ are ambiguous and vague as they do not provide guidance to community groups on what objectives and activities are prohibited. They further allow administrators of the CGRA to interpret the phrases in ways that violate fundamental rights and freedoms. Additionally, they are susceptible to varied and inconsistent interpretations by administrative and judicial authorities. 17. The petitioners further argue that the authority given to the Director of Social Development is of equal concern as the Act does not specify what qualifications the Director should have or who has the responsibility for appointing the director. Nevertheless, the Act under **Section 12(b)** gives the Director of Social Development extensive authority to reject community group registration applications on vague and overly broad terms. Furthermore, the Act does not provide an exhaustive administrative process for challenging the Director’s decision or for appealing that decision to the Cabinet Secretary. Resultantly, a community group applicant cannot attain any effective redress if the broad definition is applied unfairly or in violation of the Constitution. Additionally, although the Director of Social Development has the authority to adopt regulations, it has not done so. As a result, there are no internally established guidelines that could be relied upon to curtail extensive authority given to the national government to control the activities of community groups. 18. The petitioners contend that the 1st petitioner is an organization formed by young people to promote social justice in Mathare area. It addresses issues relating to fundamental human rights and good governance that affect Mathare and other informal settlements in Nairobi. The 1st petitioner initially registered as a community group in January 2015 and filed a replacement certificate with the Mathare sub county Social Development Officer on 28th January 2021. Its constitution lists it objectives which include providing a platform for legal redress and political accountability for all members of the community. On 15th August 2023, the 1st petitioner received a letter from Caroline Nziu, the Mathare sub county Social Development Officer instructing them to amend their objectives to align with the CGRA. Ms. Nziu attached a new revised application form that listed community group activities that had been approved by the Director which was to guide them on which group activities it did. The revised application form provided by Ms. Nziu included the following activities: community project, community empowerment, community advocacy, crop farming, cultural/traditional activities, environment conservation, financial services, fishery, health care, livestock rearing, poultry keeping, skills development, tourism, youth empowerment, merry go round, table banking and others. 19. The 1st petitioner responded to the letter dated 27th September 2023 to which they disagreed with Ms. Nziu’s assessment of their objectives stating that the objectives were in line with **Article 10 of the Constitution** and to the extent that the CGRA prohibited engaging in human rights activities, it was unconstitutional. Ms. Nziu replied on 9th November 2023 to clarify circumstances under which the 1st petitioner was not in line with the Community Groups Registration Act. She referred to the definition of a community group in Section 2 of the CGRA and stated that the objective c in their constitution- providing a platform for legal redress and political accountability for all members of the community- may be interpreted as championing a political cause and thus disqualify them as a community group under the Act. She advised them to change the group objectives in its constitution to be in line with the meaning assigned to a community group under the Act or in the alternative, she suggested they register as a legal entity under a different Act. 20. The petitioners argue that Ms. Nziu’s efforts to interfere with the activities of the 1st petitioner highlights the flaws in the CGRA and the way those flaws can be abused to infringe on fundamental rights and freedoms. Although the 1st petitioner’s objective of providing a platform for legal redress and political accountability for all members of the community would seem to qualify as community advocacy and community empowerment, it has been determined by the respondents as inappropriate because it champions a political cause or is contrary to public policy. Further adopting a list of approved activities as a basis for limiting what community groups can do is another example of how the respondents have taken advantage of the vague language in the Act to establish mechanisms for excluding activities that do not fit within their prescribed categories. The list of approved activities is sui generis, and has not been subject to public scrutiny or administrative approval, and has not been developed through a regulatory framework. 21. The petitioners reveal that on 25th October 2023, the 2nd petitioner emailed a request for information to the Principal Secretary for the Ministry of Labour and Social Protection, State Department for Social Protection and Senior Citizen Affairs requesting for the following information: all regulations implemented to carry out the provisions of the CGRA; all forms adopted for carrying out the provisions of the CGRA; information regarding public participation and citizen engagement conducted before adoption of regulations or forms; information regarding the Ministry’s interpretation of the terms ‘political cause’ and ‘contrary to public policy’ as used in the definition of ‘community group’ in Section 2 of the CGRA; a list of all community groups that have been informed that their objectives are not in line with community registration activities developed under the CGRA and a list of all community groups that have been requested to amend their objectives to be in line with the CGRA. They aver that they sent the request on 25th October 2025 but are yet to receive a response. **The 1st – 6th Respondents’ Case.** 1. Joseph Motari, MBS, the Principal Secretary, State Department for Social Protection and Senior Citizens Affairs swore the affidavit on behalf of the 1st – 6th respondents and states that the petition is an outright abuse of the court process because suing the 1st, 2nd and 5th respondents by name is mischievous and misguided by law. Further the petitioners have ended up confusing the functions and responsibilities and the leadership in charge of various state departments as regulation of community groups under the impugned legislation falls under the jurisdiction of the State Department for Social Protection and Senior Citizens Affairs. 2. The deponent avers that the 7th and 8th respondents conducted meaningful public participation with respect to the impugned legislation. He avers that the development of the Act began by identifying and inviting various stakeholders, both state and non state actors who would provide technical support and guidance to the process. The key stakeholders who formed the task force comprised of officers drawn from the Office of the Attorney General, Kenya Law Reform Commission, various Ministries Departments and Agencies, Council of Governors, Academic institutions, Civil Society Organizations and Social Development Officers. 3. Notices were issued calling for reviews and comments from the general public and stakeholders which included publishing a notice in MyGov.com newspaper of 20th February 2018 and further uploaded in the State Department’s website, [www.socialprotection.go.ke](http://www.socialprotection.go.ke) for access by the general public. The ministry collected views upon which a meeting was held on 14th March 2018 in Nairobi to consider and incorporate the comments received from the public participation exercise. Additionally, stakeholder forums were held at the national and county level to hear views of the community members and community-based organizations. 4. The deponent states that the Bill was later presented to members of the Parliamentary Departmental Committee on Labour & Social Welfare as well as key stakeholders on 28th March and 29th March 2019 which invited submissions from the public via advertisements in the daily newspaper of 11th June 2021. Additionally, key stakeholders were invited on 31st August 2021 by the said Departmental Committee to give submissions on the Bill. He further avers that the Ministry made its submissions on 31st August 2021and other key stakeholders such as the Council of Governors, Ministry of Interior and Coordination of National Government and the NGO Board opted to submit memoranda on the Bill to the said committee following a consultative retreat workshop held in Mombasa from 29th August 2021 to 4th September 2021. The deponent affirms that the Ministry is aware of the advertisement by the Senate Committee in the Daily Nation of 31st December 2021 seeking submissions from the public. The said Senate Committee undertook a stakeholder forum on 2nd February 2022 upon which the Ministry also submitted a memorandum. 5. The deponent affirms that the Council of Governors made submissions on the national government usurping their role of registration of community groups during the law making process and in particular during the Parliamentary Departmental Committee on Labour and Social welfare meeting. He further avers that Schedule 4 part 2(14) of the Constitution does not explicitly speak to community groups registration as the emphasis is on community participation in governance at the local level. *He states that group mobilization and registration is a function the 1st respondent has been undertaking since independence through the harambee movements as provided for in the Sessional Paper No. 10, 1965 on African Socialism and its Application to Planning in Kenya.* Due to the weak regulatory system, there arose the need for a standardized and uniform process of community groups in the country. Further, the management and operation of group registration has a direct bearing on national security. 6. The deponent avers that to enhance regulatory compliance; the 1st respondent maintained a **Community Development Management Information System (CDMIS)** that will eventually be linked to the Integrated Population Registration System (IPRS) and other relevant management information systems for *verification of the group members and their activities prior to registration*. Further, the committee provides a platform for the two levels of government to collaborate and Section 5(1)(b) of the Act provides for the inclusion of two representatives from the county government one of whom is an officer responsible for social development at the county level. 7. Additionally, the deponent avers that by dint of **Article 186(3)** of the Constitution, a function or power that is not assigned by the constitution or national legislation to a county remains a function of the national government. 8. On the issue of the definition of community groups in Section 2 of the Act being vague, the deponent argues that public policy as used in the text of definition should be interpreted in line with the established canons on interpretation of statutes that a definition clause should not be read in isolation but given meaning in the context in which it is used in the text of legislation taking into account its bearing in all the relevant provisions of law. Further it is trite that the phrase ‘contrary to public policy’ as used in a text of legislation is informed by the impracticality to exhaustively list prohibited activities and in normal parlance means inconsistent with the constitution or any other law of Kenya whether written or unwritten or inimical to the national interest of Kenya or contrary to justice and morality. The deponent further states that the definition of the word community group should be guided by the text under **Sections 10, 11, 12, 14 and 15 of the Act**. 9. The deponent argues that the essence of **Section 3(1) of the Act** is to establish an office of the Director of Social Development as an office in the public service and therefore given meaning within the constitutional scheme at **Article 234(2)(g) of the Constitution** which empowers the Public Service Commission to review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service. Therefore, the operationalization of the office is done through the appropriate Human Resource Management Policies such as the Human Resource management Policy and Procedures Guidelines, Career Guidelines and the Organization Structure, Grading and Staff Establishment. He further argues that at the point of developing the law, the office of the Director was already in existence as established through the public service and whose functions are decentralized to the county and sub county levels. 10. The deponent asserts that the essence of **Section 3(2)(c) of the Act** is to designate the function to the office of the Director established under **Section 3(1) of the Act**. However operationalization and due exercise of that function is to be gleaned from **Sections 4, 5, 33, 34, 35, 36 and 40 of the Act**. He further asserts that the Ministry is on course in developing appropriate regulations to facilitate the better carrying out of the provisions of the Act. With regard to the allegation of the monitoring and investigatory power of the Director having a consequential effect of limiting **Articles 32 and 33 of the Constitution**, the exercise of the said function is reasonable and justifiable in the circumstances and is informed by law. 11. Regarding the vagueness of **Section 12(b) of the Act**, the deponent states that the ultimate objective of the impugned section is to instil a value-based approach to running community groups and to ensure compliance with the rule of law under the Act, the Constitution and the Penal Code. The Act under **Section 13(2)** provides for an administrative procedure within which the function is to be exercised first, by requiring the Director to notify the applicants of the refusal to register noting to state reasons for the rejection and secondly, an applicant aggrieved by this decision has the right to appeal the decision of the Director to the Cabinet Secretary in writing. The provisions of the Act notwithstanding, a party aggrieved by an administrative action or decision has the opportunity to move the court for judicial review in accordance with the provisions of the Fair Administrative Action Act. The deponent further states that **Sections 12-14 of the Act** have taken into account the requirements of **Articles 36 and 47 of the Constitution** on freedom of association and right to fair administrative action. 12. The deponent denies the violation of **Article 35 of the Constitution** and states that for the better part of Quarter 2 of the Financial Year 2023/2024 the State Department was in the process of migrating its email services from the Microsoft Outlook platform to the Zimbra platform in order to enhance its efficiency. Thus in the event the 2nd petitioner sent the letter via email, the same may not have been reflected on the end of the state department. As regards receipt of a hard copy letter, the State Department has no records of such receipt. He further argues that the said allegation is premature and ill advised in light of a specific avenue under **Section 14(1) of the Access to Information Act** on redress mechanisms where refusal to furnish an applicant with requested information is alleged. 13. On the allegation that the 1st respondent has violated **Section 26(1) of the Statutory Instruments Act,** the deponent states that upon enactment of the Act, the Ministry embarked on the review of the already existing group application forms to align with the Act. The forms have since been incorporated into the Community Development Management Information System (CDMIS) which is the main platform under which the registration of community groups is currently being undertaken. As stipulated under Section 3(d) of the Act, the Ministry through the Director of Social Development developed the Community Development Management Information System (CDMIS) to facilitate the registration of community groups. In line with the Presidential Directive on digitalization of all government services, the registration of community groups components in the CDMIS was on boarded to the e-citizen platform where community groups can lodge their applications. The CDMIS was officially launched in October 2023. Thus as directed under **Section 26 of the Statutory Instruments Act**, the forms were approved by the Cabinet Secretary and are in conformity with the requirements of the impugned legislation. Further, the revised application forms for community groups provides the types of activities that a community may register. However, the list is not exhaustive and does not limit a group to the said listed activities. A group may decide to provide its activities under the head “others” which is then verified upon receipt in order to ensure that it aligns with the purpose and object of the Act. 14. The deponent states that the letter by the 5th respondent did not seek to limit the petitioner’s involvement in addressing the structural injustices within Mathare Community and its neighbourhood by monitoring and documenting the status of human rights violations such as advocating for the rule of law and the implementation of the Constitution. The 5th respondent took issue with objective 9(c) in relation to providing a platform for legal redress and political accountability for all members of the community. The said restriction fitted within the scheme of the CGRA and was reasonable and proportionate to the terms of **Article 24 of the Constitution** as there exist avenues for championing political interests and accountability in form of political parties and advocacy groups under a separate legal framework. **The 7th Respondent’s Case.** 1. Samuel N. Njoroge CBS, the Clerk of the National Assembly swore the affidavit on behalf of the 7th respondent and states that the enactment of the Community Groups Registration Act 2022 was procedurally and legally enacted by the 7th respondent. He reveals that the Community Groups Registration Bill underwent its first reading on 8th June 2021 and was subsequently committed to the Departmental Committee on Labour and Social Welfare for review and report to the House according to the provisions of Standing Order 127(1). Pursuant to **Article 118 of the Constitution** and **Standing Order 127(3) of the National Assembly**, the Committee vide an advertisement in the daily newspapers on 11th June 2021 invited the public to make representations on the Bill. The Committee also identified and invited key stakeholders who appeared before it at a public hearing on 30th and 31st August 2021. He further reveals that the Committee received submissions from numerous stakeholders including the Ministry of Labour and Social Welfare, the Ministry of Interior and Coordination of National Government, the Council of Governors and the Non Governmental Organizations Coordination Board. It also extensively considered the contents of both the oral and written submissions from which it drew its recommendations. 2. The deponent avers that there is no specific style of carrying out public participation. The petitioners were notified about the impending legislation and were given a reasonable opportunity to make their representations to the National Assembly. He argues that an Act of Parliament is presumed to be constitutional on the basis that parliament understands and appreciates the needs of the people. 3. He further contends that pursuant to **Article 191 of the Constitution,** the national government legislation can prevail over county legislation if it applies uniformly throughout Kenya; provides for a matter that to be dealt with effectively, requires uniformity across the nation and is geared towards preventing unreasonable action by a county that is prejudicial to the economic, health or security interests of Kenya. That notwithstanding, the Memorandum of Objects and Reasons for the Community Registration Bill 2021 provides that the Bill concerns county governments. The Bill was subjected to consideration, debate and approval by Senate as required under **Article 96 of the Constitution**. Further **Article 110(1) of the Constitution** provides that a Bill concerning county government means a Bill containing provisions affecting the functions and powers of the county governments set out in the Fourth Schedule; a Bill relating to the election of members of county assembly or a county executive; and a Bill referred to in Chapter 12 affecting the finances of county governments. He avers that the provisions of **Article 96(2) of the Constitution** underscore the fact that the Constitution anticipates Bills touching on matters that are a function of county governments being legislated by parliament provided that there is approval of Senate. 4. The deponent argues that the definition of community groups under the Act endeavours to provide an interpretation which is consistent with the scope of the impugned Act. It further attempts to distinguish community groups from other associations regulated by other Acts of Parliament. It does not in any way foster discrimination or limit fundamental rights and freedoms enshrined in the Constitution. Furthermore, the definition is in tandem with the objective of the CGRA. On the allegation that **Section 3(2)(c) of the Act** being unconstitutional, the deponent argues that the said provision does not limit the fundamental rights of members of the community groups enshrined in **Articles 32 and 33 of the Constitution**. The Director of Social Development will only be performing his role under the Act whose objective is to provide a regulatory framework. 5. The deponent further avers that **Section 6(e) and (h) of the Act** does not in any way limit the fundamental rights of members of community groups enshrined in **Articles 32, 33 and 36 of the Constitution**. The social development committee will be performing its role under the Act in a bid to meet the objective of the impugned Act. On the allegation that Section 12(b) of the Act is void for vagueness because it fails to provide adequate notice to citizens on what activities are prohibited and creates an opportunity for the Director of Social Development to arbitrarily or discriminatorily reject community group applications, the deponent argues that **Section 12(b)** is meant to address any concerns that may relate to violation of public policy which is well captured in the definition of a community group under Section 2 of the Act. On the further allegation that **Sections 12-14 of the Act** violate **Articles 36 and 47 of the Constitution** because they provide unchecked oversight of community groups without providing the opportunity for fair administrative action, the deponent states that the said provisions are in line with **Article 47 of the Constitution**. 6. The deponent argues that the petitioners have not provided sufficient information on the rights claimed to be violated or how the rights were violated. **The 8th Respondent’s Case.** 1. Eunice Gichangi MBS, the Deputy Clerk of the Senate swore the affidavit on behalf of the 8th respondent and states that the enactment of the Community Groups Registration Act 2022 was procedurally and legally enacted by the 7th respondent. She reveals that the Community Groups Registration Bill underwent its first reading on 8th June 2021 and was subsequently committed to the Departmental Committee on Labour and Social Welfare for review and report to the House according to the provisions of Standing Order 127(1). Pursuant to **Article 118 of the Constitution** and **Standing Order 127(3) of the National Assembly**, the Committee vide an advertisement in the daily newspapers on 11th June 2021 invited the public to make representations on the Bill. The Committee also identified and invited key stakeholders who appeared before it at a public hearing on 30th and 31st August 2021. She further reveals that the Committee received submissions from numerous stakeholders including the Ministry of Labour and Social Welfare, the Ministry of Interior and Coordination of National Government, the Council of Governors and the Non Governmental Organizations Coordination Board. The National assembly thereafter debated the Bill at the second reading stage, the Committee of the whole house stage passed the Bill at the 3rd reading stage on 25th December 2021 in accordance with **Article 110 of the Constitution**. 2. The deponent avers that the Bill was introduced by the leader of Majority Party in the Senate, Sen. Samuel Poghisio, EGH, MP and read a first time on 22nd December 2021 and thereafter committed to the Senate Standing Committee on Labour and Social welfare for consideration and public participation. 3. The Senate Committee proceeded to undertake public participation on the Bill in compliance with **Article 118 of the Constitution** and **Standing Order 145(5) of the Senate Standing Orders** by placing an advertisement in the Daily Nation and Standard on 31st December 2021 inviting interested stakeholders and members of the public to submit written memoranda of the Bill. Additionally, the Senate Committee held virtual stakeholders hearings with the stakeholders that had submitted memoranda on the Bill on 2nd February 2022. It thereafter analysed the submissions and presentations received and submitted its report containing proposals for amendment of the Bill. The deponent further states that the Senate debated and considered the Bill at the second reading stage, Committee of the whole house stage and passed the Bill at the third reading stage on 16th June 2022 without amendments and referred it to the Speaker of the National assembly for transmission to the President for assent in accordance with **Article 110(5) of the Constitution**. 4. The deponent asserts that the petitioners and members of the public were afforded two opportunities to engage in public participation on the Bill namely when the Bill was considered in the National Assembly and thereafter at the Senate since the relevant committees of the two houses advertised for public participation. Thus, the petitioners cannot be heard to lay blame on the Senate or the National assembly for their failure to submit any memorandum or participate in enactment of the Bill. Further, sufficient opportunity was given to the petitioners and the public at large to engage in the process of public participation including a reasonable notice and therefore the public participation process cannot be said to be flawed. 5. The deponent avers that as a general principle of law, a statute enacted by parliament is presumed to be constitutional unless declared unconstitutional by the courts. The burden of proving that any law is unconstitutional rests with the person alleging as such, which the petitioners have failed to discharge. Further, the test for establishing constitutionality of a statute is for the court to first determine the object and purpose of the impugned statute. To determine whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also its effect, which the petitioners have failed to establish. 6. Pursuant to **Article 119 of the Constitution**, the deponent affirms that the petitioners ought to have petitioned parliament with proposals for amendment of the relevant sections of the Community Groups Registration Act. Furthermore, the power to legislate is a preserve of the legislature with only provisions for delegation to persons or bodies in accordance with Article 94 of the Constitution. The deponent further avers that save for quoting numerous provisions of the impugned Act and the Constitution in their pleadings, the petitioners have not furnished the court with tangible evidence to support their allegations. 7. The petition was disposed of by way of written submissions. **Petitioners’ Submissions** 8. The petitioners identified four issues for determination as follows: whether the provisions of the CGRA are void for being overbroad and vague; whether the vagueness and overbreadth in the provisions of the CGRA violate and or threaten the enjoyment of the right to freedom of association as provided for under Article 36; whether the CGRA is unconstitutional for being passed without adequate public participation and consultation with county governments and whether the 2nd respondent violated the 2nd petitioner’s right to access information. On the first issue, the petitioners submitted that the definition of community groups under Section 2, Sections 3(2)(c), 5, 10(2) & (3), 12, 13, 14 and the Second Schedule of the Community Groups Registration Act are sufficiently vague and ought to be voided since vague laws are prima facie in violation of the Bill of Rights. They further submitted that since the statute is void and unenforceable the court need not and will be unable to determine whether they violate fundamental rights and freedoms. That notwithstanding, the petitioners asserted that the rule of law under **Article 10 of the Constitution** provides that statues must be specific and precise in their language. Reliance was placed in the case of **Keroche Industries Limited vs Kenya Revenue Authority & 5 Others Nairobi, HCMA No. 743 of 2006 [2007] 2 KLR 240** where the court found that deprivations of individual interests in liberty or property must be accompanied by sufficient procedural safeguards that ensure certainty and regularity of law, and for that reason, this Court has repeatedly held that where the terms of a statute are vague, overbroad, or contradictory, they violate the constitution and must be voided. 9. The petitioners further submitted that a provision is said to be vague or ambiguous when the average citizen is unable to know what is regulated and how that regulation is implemented or when the provision is capable of eliciting different interpretations and different results. Further, courts have established several standards for determining whether a statute should be voided because it is ambiguous or vague. One standard focuses on the perspective of judicial officers and decision makers, from which perspective a statute is unconstitutionally vague when the language is so imprecise or ill defined that its meaning is left to the ‘subjective interpretation of the judicial officer.’ The other standard focuses on the perspective of an individual who must comply with the law. From that perspective, a provision will be said to be void when the average citizen is unable to know what is regulated and the manner of that regulation, or where the provision is capable of eliciting different interpretations and different results. The petitioners relied on the case of **Kolender vs Lawson 461 US 352** whereby the court in offering guidance on the doctrine of vagueness opined that:- ***We have noticed that the more important aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine- the requirement that a legislature establish minimal guidelines to govern law enforcement…Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standard less sweep (that) allows policemen, prosecutors and juries to pursue their personal predilections.*** 1. The petitioners affirmed that the need to provide clear notice to citizens of what is expected and a clear understanding to law enforcement about what conduct is prohibited are the hallmarks of vagueness inquiries in other jurisdictions. In **R vs Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 Canada**, the doctrine of vagueness is founded on the rule of law, particularly the principles of fair notice to citizens and limitation of enforcement discretion. Further in **Gaston Savoi & 2 Others vs The National Director of Public Prosecutions & Another 8006/2012 South Africa**, the vagueness doctrine enquiry…is twofold: *First the court looks at the challenged law to determine whether adequate notice of the prohibited conduct is provided. Secondly, the court analyses the law to see if it creates a potential for arbitrary law enforcement*. 2. Further reliance was placed in the case of **Kenya Bankers Association vs Attorney General & Another [2019] eKLR** where a statute must meet the following criteria to meet the void for vagueness requirements:- 3. ***It must state explicitly what it mandates*** 4. ***It must clearly identify what is enforceable and*** 5. ***It must provide definitions of vague terms.*** 6. The petitioners outlined the definition of community group under **Section 2 of the Act** which means:- ***A voluntary association of individuals from the same community which is self organised for a common purpose aimed at improving the livelihood of the group of members or for a community benefit and includes a special interest group, community project and community based organization but shall not include a public benefit organization, nongovernmental organization or groups formed to champion a political cause or contrary to public policy.*** 1. They argued that the terms ‘political cause’ and ‘contrary to public policy’ are not defined and do not meet the criteria set out in **Kenya Bankers Association vs Attorney General & Another** (supra). They further argued that the 1st – 6th respondents attempted to resolve the issue by asserting that ‘public policy’ as used in the text of definition of a community group should be interpreted in line with established cannons on the interpretation of a statute that a definition clause should not be read in isolation but given meaning in the context. The respondents further asserted that the phrase ‘contrary to public policy’ is informed by the impracticality of exhaustively listing prohibited activities and in normal parlance means ‘either activities inconsistent with the Constitution or any other law of Kenya whether written or unwritten’ or ‘inimical to the national interest of Kenya or ‘contrary to justice and morality.’ The petitioners argued that if a court must work that hard to arrive at a definition, it simply cannot expect the average person to ascertain what is prohibited. Reliance was placed in the case of **Law Society of Kenya vs Kenya Revenue Authority & Another [2017] eKLR** where the court held that rules by which the citizen is to be bound should be ascertainable by him by reference to identifiable sources that are publicly accessible, clear and not vague. 2. The 7th respondent attempted to define the phrase ‘contrary to public policy’ and stated that ‘as used in a text of legislation is informed by the impracticality to exhaustively list prohibited activities and in normal parlance means either inconstant with the constitution or any other law of Kenya whether written or unwritten or inimical to the national interest of Kenya, or contrary to justice and morality. The petitioners argued that the respondents failed to appreciate that it was less about inferring meaning from the legislation and more about objectively appraising what the implication of applying that provision arbitrarily portends for the right to freedom of association particularly in the Gen Z era. They asserted that community groups such as the 1st petitioner are non profit organizations and led by citizens to champion their collective and common interests and promote community members welfare. The 1st petitioner’s experience makes it clear that the State has already started exercising unconstitutional authority in ways that violate fundamental rights and freedoms. It has used the CGRA to demand that the 1st petitioner and other community groups alter their activities or face deregistration. 3. The petitioners argued that **Section 3** of the CGRA establishes the office of the 3rd respondent but does not provide any qualifications for the said position or state who has the authority to appoint the Director. Nevertheless, the director is given extensive responsibility and control over community groups including mobilising communities to form groups to undertake community projects, registering community groups, supervising, monitoring and evaluating community projects by community groups and on request of an interested party, the investigation of community group activities. The Act does not define who an interested party is in that case. Sections 5 and 6 which establish the office of the 5th respondent has similar structure to Section 3 with the above impugned scheme of service for social development personnel dated 31st August 2016 applied to them. 4. **Section 9 of the Act** provides for the qualifications to be a community group however Section 9(3) gives the 3rd respondent the authority to require additional information from the applicant or conduct an investigation as may be necessary before approving or rejecting the application. The petitioners argued that following the principle of statutory interpretation that different terms are presumed to have different meanings, the court ought to find that the terms public policy and contrary to public opinion ought to be given their meanings within the context of the community groups registration in Kenya and not left to the respondents’ discretion. 5. On the argument by the respondents that the definition of a community group may lead to arbitrary and discriminatory registration and regulation of community groups must be guided by Sections 10, 11, 12, 14 and 15, the petitioners affirmed that not even a literal reading of the said provisions allays their fear that the lack of a definition of what amounts to public policy or contrary to public opinion under Section 2 will be cured by the said sections to bring it in conformity with the rule of law dictates as required by the Constitution. Further, although the 1st – 6th respondents argue that **Section 40 of the CGRA** enjoins the 1st respondent to make regulations for the better carrying out of the provisions of the Act, they have admitted in their submissions that there are no regulations in place yet and that the 1st respondent through the Directorate of Social Development has established a Technical Working Committee to lead the development process of the regulations to give a practical effect to the broad provisions of the Act. 6. The petitioners argued that while the enactment of the regulations is not couched in mandatory terms, in the South African Constitutional Court case of **Minister of Health vs New Chicks South Africa Pty Ltd CCT/59/04** held that while the forms of facilitating an appropriate degree of participation in the law making process are indeed capable of infinite variation, what matters is that a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and have adequate say. No evidence has been tendered along with the submissions that there is any degree of participation in the process of enacting those regulations by either members of the public or interested parties. 7. On the second issue, the petitioners argued that the court is being called upon to balance the need to standardise the registration of community groups in the country and the right of freedom of association and to balance the harm imposed on citizens championing their collective and common interests. They further argued that although the CGRA is meant to provide a legal framework for registering and regulating community groups, it gives the state the power to limit the activities of community groups in ways that violate the right to freedom of association, the power to oversee and investigate community groups based on perceived immoral activities and to punish those groups that do not comply with the state’s unconstitutional authority, while imposing such punishments without first providing a fair hearing. Additionally, the proportionality test must balance the harms imposed by the limitation against actual, tangible benefits and discard allegations such as the management and operation of group registration has a direct bearing on national security and that registered community groups are being used to undertake illegal activities. 8. The petitioners affirmed that they have satisfied the burden of proof as the 1st petitioners allegations against the 5th respondent are undisputed facts. Reliance was placed in the case of **Daniel Kibet Mutai & 9 Others vs Attorney General (Civil Appeal 95 of 2016) [2019] eKLR** where the court found that there was no reason to question affidavit evidence as the allegations were not denied and that the appellants had laid appropriate basis for their claim. Further, the 5th respondent stands by her actions and letters to the 1st petitioner and argued that she took issue with objective 9(c) in relation to providing a platform for legal redress and political accountability for all community members and advised the 1st petitioner that the said objective may be construed that their organisation was formed to champion a political cause contrary to the provisions of the CGRA. The petitioners argued that it was that level of high handedness from the respondents and arbitrary application of the vague and overbroad provisions of the CGRA that they are apprehensive is a threat to the enjoyment of the right to freedom of association. 9. The petitioners further argued that the courts have extensively discussed the test in assessing what amounts to a threat to a right or fundamental freedom, what amounts to a violation, and the burden of proof to establish each. The consensus is that the burden of proof in constitutional and human rights issues is not beyond reasonable doubt and is lower than the standard required in civil and criminal cases. They further submitted that the High Court has held that a threat is established if there is “an indication of an approaching menace, e.g threat of bankruptcy; a person or a thing that might cause harm” or “a communicated intent to inflict harm or loss to another.” Further in Coalition for **Reform and Democracy (CORD) & 2 Others vs Republic & 10 Others, pets 628, 630 of 2014 & 12 of 2015 (Consolidated) [2015] eKLR** para 113 where the court held that it is sufficient to grant relief for threatened violations of fundamental rights or freedoms if indications of such violations are apparent. Additionally in **Okiya Omtatah Okoiti vs Communication Authority of Kenya & 8 Others HC Pet 53 of 2017 [2018] eKLR** where the court stated that “*in my view, the issue of threats to the violation of the fundamental rights and freedoms does not require a real and live case for the court to intervene*.” 10. The petitioners submitted that the issues pleaded are not merely theoretical but actual depictions of the situation affecting the 1st petitioner in their affidavit, as well as issues of public notoriety that the court ought to have taken judicial notice of. They further submitted that in the wake of the June 2024 Gen Z led protests and the subsequent harassment of FORD grantees, including some entities registered as community groups, brings to the fore the issue of victimisation of persons or community groups perceived to be against the political establishment for advocating for open governance and adherence to the rule of law. 11. The petitioners urged the court to find that the respondents had not satisfied the proportionality test as in their averments in their replying affidavit regarding a system maintained by the 1st respondent which will eventually be linked to the integrated population registration system (IPRS) and other relevant unidentified information management systems for verification of the group members and their activities before registration is not only prospective but also does not show the relation between the limitation and its purpose, or the reason for volunteering the information. For example how is that system going to solve the national security risks associated with improper management and registration of community groups?. 12. On the third issue, the petitioners cited the cases of **Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR** where the court held that public participation is a safeguard to prevent public interests from being ignored or misrepresented and it is expected that Kenyans participate in making decisions on matters affecting them. In **British American Tobacco Kenya, PLC formerly British American Tobacco Kenya Limited vs Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019)**, the court held that public participation should be real and not an illusory or cosmetic. The court also held that meaningful public participation must include an opportunity for balanced influence from the public in general. The 1st – 6th respondents allude to notices being published on MyGov.com newspaper on 20th February 2018 calling for views from the public and various unnamed stakeholders. The ministry insists it collected views in a meeting held on 14th March 2018 in Nairobi and annexed a copy of the resultant report which has the list of stakeholders in attendance and invitation letters to some stakeholders. The petitioners argued that invitation letters to stakeholders cannot be proof of public participation. They offer no information in support of the assertion that public participation was conducted let alone adequate public participation. 13. Further, the petitioners affirmed that the Community Groups Registration Bill 2021 underwent its first reading on 8th June 2021 and that the Committee on Labour and Social Welfare invited submissions from the public in line with **Article 118 of the Constitution** and the **Standing Orders 127(3)** via advertisements on 11th June 2021 and subsequently held sittings on 30-31st August 2021. The said committee discusses submissions by the Ministry of Labour and Social protection, the Non Governmental Organisations Coordination Board, the Council of Governors and the Office of the Attorney General which are all government entities and stakeholders. The petitioners cited the case of **In the Matter of the National Land Commission (Advisory Opinion Reference No. 2 of 2014) [2015] eKLR** where the Supreme Court distinguishes public participation from stakeholder engagement, specifically in the legislative process. The court emphasised that public participation is a constitutional requirement under Articles 10 and 69 ensuring that the public is involved in decision making processes. This is distinct from stakeholder engagement, which typically involves consulting specific, interested groups or individuals with a direct stake in the matter. 14. The Senate in similar fashion received the Bill and the Senate Committee advertised in the Standard on 31st December 2021 and held virtual stakeholder hearings on 2nd February 2022. The stakeholders were from the Ministry of Public Service, Gender Senior Citizens Affairs and Special Programmes, the Council of Governors and the NGO Coordination Board. The petitioners cited the case of **Civil Appeal No. E003 of 2024 National Assembly & the Speaker of the National Assembly vs Okiya Omtatah Okoiti & 55 Others [2024] eKLR** and stated that the court emphasized that vesting in parliament arbitrary power to reject or ignore the contribution from the public without explanation or justification is the surest way of undermining public participation. Further reliance was placed in the case of **Orange Democratic Movement & 4 Others vs Speaker of National Assembly & Others (Petition E491 of 2023) [2024] eKLR** where the High Court found that involvement of a few stakeholders did not meet the constitutional standards for public participation where six memoranda and a handful of stakeholders couldn’t represent the voices of people as required by the Constitution. 15. The petitioners argued that although the 8th respondent stated that Senate debated and considered the Bill and passed the Bill after the 3rd reading without amendments and referred the Bill to the Speaker of the National Assembly for transmission to the President for assent, the concerns raised by the Council of Governors regarding the proper allocation of functions between the national and county governments and that Part 2 of the Second Schedule of the Constitution devolves social and community mobilisation to the counties were unaddressed. They further affirmed that the Transition Authority established under the Transition to Devolved Government Act unbundled the functions delegated to counties to include facilitating, forming, registration, and certification of community groups, undertaking community groups’ capacity building and sensitization, providing grant support to community groups to support upscaling of best practices and facilitating community capacity support centres. The petitioners relied on the case of **Kenya Agricultural and Livestock Research Organization (KALRO) vs County Government of Kitui [2019]** where the court emphasized that when functions are devolved to counties, the associated resources, such as financial and infrastructural assets must follow which ensures that counties have the necessary capacity to perform the devolved functions effectively. 16. The petitioners asserted that the Council of Governors proposed amendments that would apply a standard registration process for all counties but ensure that the remaining functions included in the Bill be delegated to counties while the Ministry of Labour and Social Protection proposed recommendations that would increase the national government’s authority including ensuring that approving, monitoring and evaluating community group budget proposals occurred at national level and that sub county committees included members appointed from the national level. The National Assembly Committee rejected nearly all the proposals by the Council of Governors and accepted many of the proposals from the Ministry including those that increased the role and authority of the national government. The said committee acknowledged that the registration of community groups was a function assigned by the Constitution to the county government and that taking away the authority granted to the counties by the constitution was appropriate because regulating community groups had to be done by the Ministry of Labour and Social protection before the implementation of the constitution. It further justified assigning significant responsibility to the national government even though the duties had been devolved to the counties because; the Public Benefits Organization Act was passed in 2013 but has never been implemented; county governments do not have the capacity to carry out due diligence n registration of community groups; registration of community groups at the county level is not based on any legislation and the need for a common legal framework legal regime across the country to regulate the community groups specifically for security interests. The National Assembly Committee relied on **Articles 191(2)(a) and 3(c) of the Constitution**, arguing that the constitution allows national legislation to supersede county legislation if certain conditions are satisfied. The Committee failed to mention its duty under Part 1(32) of the Fourth schedule of the Constitution and neither did it explain why the relationship between the registration and the regulation of community groups and national security was so strong as to override the constitutional requirement that the functions be devolved. The petitioners asserted that there appears to have been an impasse between the Senate and the National Assembly committees since all the recommendations by the Senate Committee aimed at upholding Part 2(14) of the Fourth schedule and preserving the functions of counties are not reflected in the CGRA. Further there is no indication of whether the two houses reached a consensus on the resultant law or whether the Senate abandoned its concerns regarding the Bill. Even if a consensus had been reached, there is no indication that the national government took steps to build the capacity of county governments or provide technical assistance before the devolved functions under Part 2(14) of the fourth Schedule were taken away by the provisions of the CGRA. 17. On the final issue, the petitioners submitted that the 2nd petitioner requested for information from the 2nd respondent but received no response. They further submitted that it was suspiciously convenient for the 2nd respondent to write to the Commission on Administration of Justice on 5th September 2024 purporting to respond to the 2nd petitioner’s request on 5th October 2024. The petitioners cited the case of **Katiba Institute vs President’s Delivery Unit & 3 others [2020] eKLR** where the High Court held that under Article 35 of the Constitution, the right to access information is a fundamental right. Public bodies must provide the requested information unless they can justify their refusal based on specific exemptions provided in law, such as security or public interest concerns. The petitioners affirmed that the 2nd respondent chose to ignore the 2nd petitioner’s request for information and has not justified their refusal on any lawful exemption for that. 18. The petitioners submitted that the doctrine of exhaustion is not applicable to the issues raised in the petition. Reliance was placed in the case of **NGOs Co-ordination Board vs EG & 4 Others [2023] KESC 17 (KLR)** where the court found that the doctrine of exhaustion and constitutional avoidance does not apply therein because there was no basis for resolving the claims other than through a petition before the court. **The 1st – 6th Respondents’ Submissions.** 1. The respondents submitted that public participation was carried out within the confines as set out in the Supreme Court decision of **British American Tobacco Kenya, PLC vs Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties) [2019] eKLR**. Further reliance was placed in the case of **King vs Attorney Fidelity Fund Board of Control & Another [2006] 1 SA 474** where the court stated:- ***Public involvement is necessary on in exact concept with many possible facets and the duty to facilitate it can be fulfilled not in one, but in many different ways; public involvement might include public participation through the submission of commentary and representations; but that is neither definitive nor exhaustive of its content. The public may become involved in the business of the national assembly as much by understanding and being informed what it is doing as by participating directly in those processes. It is plain that by imposing on parliament the obligation to facilitate public involvement in its processes, the constitution sets of base standard, but then leaves parliamentarians significant leeway in fulfilling it. Whether or not the national assembly has fulfilled its obligation cannot be assessed by examining only one aspect of public involvement in isolation of others, as the appellants have sought to do here. Nor are the various obligations Section 59(1) imposes to be viewed as if they are independent of one another, with the result that the failure of one necessarily divests the national assembly of its legislative authority.*** 1. On the allegation that the Act violates Articles 10(2)(a), 174 and Schedule 4(2)(14) by allocating functions to the national government that have been devolved to county governments, the respondents urged the court to adopt the pith and substance test provided for by **Peter W. Hogg & wade Wright in Constitutional Law of Canada, 5th edition** which posits that: ***Pith and substance is the first tool that courts use to determine which level of government has authority over a certain matter or issue. At its most basic, a pith and substance analysis asks what the essential character, or matter of a law is. The goal is to determine what the most basis purpose and effect of the law is and then determine the appropriate jurisdiction based on those characteristics. To determine the purpose of a law, courts use both intrinsic and extrinsic evidence. Intrinsic evidence consists of what the law itself says. Often the preamble of a piece of legislation will contain wording indicating what the law intends to accomplish and this can be very useful to a court. extrinsic evidence, on the other hand, is evidence that is found outside the piece of legislation.*** 1. The respondents relied on the Court of Appeal decision in **Speaker of National Assembly & Another vs Senate & 12 Others (Civil Appeal No E083 of 2021) [2021] KECA 282 (KLR) (19 November 2021)** which cited the Supreme Court of **Canada in R vs Morgentaler, 1993 Can LII 74 (SCC) [1993] 3 SCR 463** which observed:- ***A law’s matter is its true character, or pith and substance. The analysis of pith and substance necessarily starts with looking at the legislation itself in order to determine its legal effect. The court will also look beyond the four corners of legislation to inquire into its background, context and purpose and, in appropriate cases, will consider evidence of the actual or predicted practical effect of the legislation in operation. The ultimate long practical effect of the legislation is not always relevant nor will proof of it always be necessary in establishing the true character of the legislation. The court is entitled to refer to extrinsic evidence of various kinds provided it is relevant and not inherently unreliable.*** 1. Further reliance was placed in the Court of Appeal decision in **National Social Security Fund Board of Trustees vs Kenya Tea Growers Association & 14 Others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR) (3 February 2023) (Judgment)** where the court held: ***In the case of national legislation, the application of the pith and substance test to legislative competence may lead to a conclusion that the bill’s pith and substance places it wholly within functional areas of the national government, even though certain provisions of the bill (which for this purpose would be viewed as ancillary or incidental) fall within the functional areas of county governments (an exclusive county government competence). Conversely, and in the case of county legislation, the pith and substance test may lead to a conclusion that the bill’s pith and substance places it wholly within schedule 4 part two functions, even though certain provisions of the bill (again viewed for this purpose as ancillary or incidental) may fall outside schedule 4 part 2.*** ***Therefore, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held ultra vires even though it might incidentally trench on topics within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether in the guise of making a law on a matter within its competence, the legislature is in truth making a law on a subject beyond its competence. However, where that is not the position the fact of encroachment does not affect the vires of the law even as regards the area of encroachment.*** ***The analysis must answer two questions: (a) what is the pith and substance or essential character of the law? (b) does it relate to an enumerated head of power in Constitution? The first task in the analysis is to determine the pith and substance or essential character of the law, that is, the true meaning or dominant feature of the impugned legislation. This is resolved by looking at the purpose and the legal effect of the regulation or law. The purpose refers to what the legislature wanted to accomplish. Purpose is relevant to determine whether in this case, parliament was legislating within its jurisdiction, or venturing into an area under county government legislation. The legal effect refers to how the law will affect rights and liabilities, and is also helpful in illuminating the core meaning of the law. The effects can also reveal whether in form the law appears to address something within the legislature’s jurisdiction, but in substance it deals with a matter outside that jurisdiction.*** 1. The Court of Appeal further cautioned that a law found to be valid under the pith and substance analysis of law may also have some incidental effects upon matters outside of one level of government’s jurisdiction. It held:- ***Two major principles are used in determining whether a matter falls within a particular national or county government jurisdiction. One, the constitution must be interpreted flexibly to meet social, political and historic realities. Two, the principle of devolution must be respected, keeping in mind power is shared by two levels of government, each autonomous in developing policies and laws within their own jurisdiction. Notably, a law found to be valid under the pith and substance analysis of the law may also have some incidental effects upon matters outside of one level of government’s jurisdiction. This is tolerated, as a law is classified by its dominant characteristic. Incontrovertibly, the modern approach to constitutional interpretation is to allow a fair amount of interplay and overlap into the other level of government’s jurisdiction. This doctrine has been applied in India to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers. The justification for adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it encroached*** ***powers, the powers of the legislature would be drastically circumscribed.*** 1. The respondents submitted that Schedule 4 part 2(14) of the Constitution does not explicitly speak to community group registration as the emphasis is on community participation in governance at the local level. Further, it does not concern regulation of community groups but strictly relates to mobilization of communities at local level to participate in governance. Additionally by dint of **Article 186(3) of the Constitution**, a function that is not assigned by the constitution or national legislation to a county remains a function of the national government. That notwithstanding, the respondents submitted that the impugned legislation has provisions for the establishment of social development committees as the sub county level. The Committee provides a platform for the two levels of government to collaborate and **Section 5(1)(b) of the Act** provides for inclusion of two representatives from the county government, one of whom is an officer responsible for social development at the county level. 2. On the allegation of the definition of community group being vague, the respondents relied on the definition of policy by the **Kenya Law Reform Commission** in the handbook **A Guide to Legislative Process in Kenya 2015** which states as follows:- ***A policy is a course or a principle of action adopted or proposed by government, party, business or individual. It is defined by Black’s Law Dictionary as “the general principles by which a government is guided in its management of public affairs.” In the context of legislation, policy is a document which outlines what a government or an individual aims to achieve for society as a whole. All policies start of as an idea. It may be the idea of a member of the executive, a bureaucrat, legislator or a stakeholder group or an individual citizen. Essentially a policy sets out the goals and activities planned to achieve a certain purpose. Policy discussions resolve whether or not a law is needed to achieve the aims set out in the policy or the most appropriate approach to resolve a problem or embrace the opportunity at hand. For governments, in this case the National Government or County Government, policy making is the process by which they translate their vision into programs.*** 1. In terms of Policy and the Constitution, the Commission states:- ***The constitution recognizes in several instances the necessity to formulate, debate, approve and implement policies. In fact, parliament is obligated to discuss and approve a number of policies for example he national land policy, economic policy, health policy and several others, mentioned in the Fourth Schedule of the Constitution. The Constitution recognizes the need for all forms of government to engage the public in formulation of policies. Further, all state organs and state and public officers and all persons are obligated by Article 10 of the Constitution to apply and respect values and principles enshrined therein when making or implementing public policy decisions. These values and principles include inclusiveness, equality, good governance, integrity, transparency and accountability and sustainable development.*** 1. The respondents relied on the case of **Misc. Application No. 454 of 2019 IEBC vs John Omollo Nyakongo t/a H.R. Ganjee & Sons (2021) eKLR** where the court was determining whether an arbitral award was in conflict with public policy held as follows:- ***I chose to be persuaded by the decision of Onyancha J in Glencore Grain Limited vs TSS Grain Millers [2002] 1 KLR 606, for the proposition that “for an arbitral award to be against public policy of Kenya, it must be shown that it is immoral or illegal or that it would violate in clearly unacceptable manner basis legal and moral principles or value in the Kenyan society. The word illegal would hold a wider meaning than just against the law. It would include contracts or acts that are void. Against public policy would also include contracts or contractual acts or awards which would offend conceptions of our justice in such a manner that enforcement therefore would stand to be offensive.*** 1. Further reliance was placed in the case of **Misc. Application No. E1301 of 2020 Dinesh Construction Limited & Another vs Aircon Electronic Services (Nairobi) Limited [2021] eKLR** where the court held:- ***Although framed broadly, public policy as a ground for setting aside an arbitral award must be narrow in scope and assertion that an award is contrary to the public policy of Kenya cannot be vague and generalized. A party seeking to challenge an award on this ground must identify the public policy which the award allegedly breaches and then must show which part of the award conflicts with that policy.*** 1. The respondents submitted that in line with the cannon of statutory interpretation based on the text and the context, the definition should be guided by the text under Sections 10, 11, 12, 14 and 15 of the Act. 2. The respondents argued that the essence of Section 3(1) of the Act is to establish an office of the Director of Social Development as an office in the public service and therefore given meaning within the constitutional scheme at **Article 234(2)(g) of the Constitution** which empowers the Public Service Commission to review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service. Therefore the operationalization of the office is done through the appropriate Human Resource Management Policies such as the Human Resource management Policy and Procedures Guidelines, Career Guidelines and the Organization Structure, Grading and Staff Establishment. They further submitted that at the point of developing the law, the office of the Director was already in existence as established through the public service and whose functions are decentralized to the county and sub county levels. 3. The respondents asserted that the essence of Section 3(2)(c) of the Act is to designate the function to the office of the Director established under Section 3(1) of the Act. However operationalization and due exercise of that function is to be gleaned from Sections 4, 5, 33, 34, 35, 36 and 40 of the Act. They affirmed that the Ministry is on course in developing appropriate regulations to facilitate the better carrying out of the provisions of the Act. With regard to the allegation of the monitoring and investigatory power of the Director having a consequential effect of limiting Articles 32 and 33 of the Constitution, the exercise of the said function is reasonable and justifiable in the circumstances and is informed by law. 4. Regarding the vagueness of Section 12(b) of the Act, the respondents relied on the case of **R vs Big M. Drug Mart Ltd [1985] 1 SCR 295** and submitted that the purpose of enacting a statute and the effect of implementing the statute determines the constitutionality of the statute. The court observed:- ***Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.*** 1. The respondents submitted that the ultimate objective of the impugned section is to instil a value based approach to running community groups and to ensure compliance with the rule of law under the Act, the Constitution and the Penal Code. The Act under Section 13(2) provides for an administrative procedure within which the function is to be exercised first, by requiring the Director to notify the applicants of the refusal to register noting to state reasons for the rejection and secondly, an applicant aggrieved by this decision has the right to appeal the decision of the Director to the Cabinet Secretary in writing. The provisions of the Act notwithstanding, a party aggrieved by an administrative action or decision has the opportunity to move the court for judicial review in accordance with the provisions of the Fair Administrative Action Act. 2. On the allegation that Sections 12 – 14 of the Act violate **Articles 36 and 47 of the Constitution**, the respondents argued that Sections 12-14 of the Act have taken into account the requirements of **Articles 36 and 47 of the Constitution** on freedom of association and right to fair administrative action. Further, on the allegation of violation of **Article 35 of the Constitution**, the respondents asserted that for the better part of Quarter 2 of the Financial Year 2023/2024 the State Department was in the process of migrating its email services from the Microsoft Outlook platform to the Zimbra platform in order to enhance its efficiency. Thus in the event the 2nd petitioner sent the letter via email, the same may not have been reflected on the end of the state department. As regards receipt of a hard copy letter, the State Department has no records of such receipt. They further asserted that the said allegation is premature and ill advised in light of a specific avenue under **Section 14(1) of the Access to Information Act** on redress mechanisms where refusal to furnish an applicant with requested information is alleged. Thus the said allegation ought to have been raised with the Commission on Administrative Justice. The respondents argued that the petitioners failed to invoke the said procedure and instead filed the petition in court which is contrary to what the Court of Appeal held in the case of **Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others (2015) eKLR** where the court observed that:- ***It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the fist port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution of courts. this accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.*** 1. On the allegation that the 1st respondent has violated **Section 26(1) of the Statutory Instruments Act**, the respondents submitted that upon enactment of the Act, the Ministry embarked on the review of the already existing group application forms to align with the Act. The forms have since been incorporated into the Community Development Management Information System (CDMIS) which is the main platform under which the registration of community groups is currently being undertaken. As stipulated under Section 3(d) of the Act, the Ministry through the Director of Social Development developed the Community Development Management Information System (CDMIS) to facilitate the registration of community groups. In line with the Presidential Directive on digitalization of all government services, the registration of community groups components in the CDMIS was on boarded to the e-citizen platform where community groups can lodge their applications. The CDMIS was officially launched in October 2023. Thus as directed under Section 26 of the Statutory Instruments Act, the forms were approved by the Cabinet Secretary and are in conformity with the requirements of the impugned legislation. Further, the revised application forms for community groups provides the types of activities that a community may register. However the list is not exhaustive and does not limit a group to the said listed activities. A group may decide to provide its activities under the head “others” which is then verified upon receipt in order to ensure that it aligns with the purpose and object of the Act. 2. The respondents revealed that the letter by the 5th respondent did not seek to limit the petitioner’s involvement in addressing the structural injustices within Mathare Community and its neighbourhood by monitoring and documenting the status of human rights violations such as advocating for the rule of law and the implementation of the Constitution. The 5th respondent took issue with was objective 9(c) in relation to providing a platform for legal redress and political accountability for all members of the community. The said restriction fitted within the scheme of the CGRA and was reasonable and proportionate to the terms of **Article 24 of the Constitution** as there exist avenues for championing political interests and accountability in form of political parties and advocacy groups under a separate legal framework. **The 7th Respondent’s Submissions.** 1. The 7th respondent identified six issues for determination as follows: whether the enactment of the impugned Act contravened the national values and principles of governance including public participation; what is the threshold for public participation and whether the same was attained by the 7th respondent; whether the impugned Act is unconstitutional and whether the same enjoys the presumption of constitutionality; whether the impugned Act violates the principles of devolution; whether the impugned Act limits fundamental rights and freedoms and whether the petitioners are entitled to the costs and damages sought. On the first issue, the 7th respondent cited the case of **Kiambu County Government & 3 Others vs Robert N. Gakuru & Others [2017] eKLR** where the Court of Appeal held:- ***The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of people. The Constitution in Article 10 binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation.*** 1. The 7th respondent submitted that the Community Groups Registration Bill 2021 underwent its first reading on 8th June 2021 and was subsequently committed to the Departmental Committee on Labour and Social Welfare for review and report to the House according to the provisions of Standing Order 127(1). Under **Article 118 of the Constitution** and **Standing Order 127(3) of the National Assembly**, the Committee vide an advertisement in the daily newspapers of 11th June 2021 invited the public to make representations on the Bill and invited key stakeholders who appeared before it at a public hearing on 30th and 31st August 2021. The Committee received submissions from numerous stakeholders including the Ministry of Labour and Social Welfare, the Ministry of Interior and Coordination of National Government, the Council of Governors and the Non Governmental Organizations Coordination Board. It extensively considered the contents of both the oral and written submissions from which it drew its recommendations. Reliance was placed in the case of **Land Access Movement of South Africa Association for Rural Development and Others vs Chairperson of the National Council of Provinces and Others [2016] ZAACC22** where the court observed:- ***The standard to be applied in determining whether parliament has met its obligation of facilitating public participation is one of reasonableness. The reasonableness of parliament’s conduct depends on the peculiar circumstances of the facts at issue. When determining the question whether parliament’s conduct was reasonable, some deference should be paid to what parliament considered appropriate in the circumstances, as the power to determine how participation in the legislative process will be facilitated rests upon parliament. The court must have regard to issues like time constraints and potential expense. It must also be alive to the importance of the legislation in question, and its impact on the public.*** 1. The 7th respondent cited the case of **Doctors for Life International vs Speaker of the National Assembly & Others (CCT12/05) ZACC11; 2006 (12) BCLR 1399 (CC); 2006 (6)SA 416 (CC)** where the court expounded on the issue of what amounts to public participation in the legislative process as follows:- ***The phrase “facilitate public involvement” is a broad concept, which relates to the duty to ensure public participation in the law making process. The key words in this phrase are “facilitate” and “involvement”. To facilitate means to make easy or easier, promote or help forward. the phrase public involvement is commonly used to describe the process of allowing the public to participate in the decision making process. The dictionary definition of involve includes to bring a person into a matter while participation is defined as “taking part with others (in an action or matter); the active involvement of members of a community or organization in decisions which affect them. According to their plain and ordinary*** ***meaning, the words public involvement or public participation refer to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore means taking steps to ensure that the public participates in the legislative process.*** 1. The 7th respondent argued that for public participation to be considered effective, it does not mean that all proposals and views as presented during public participation must be accepted. The National Assembly is mandated to afford members of the public a reasonable opportunity to present their views. The Court of Appeal in **Kiambu County Government & 3 Others vs Robert N. Gakuru & Others [2017] eKLR** held that public participation must include and be seen to include the dissemination of information, invitation to participate in the process and consultation on the legislation. It stated:- ***In determining whether parliament has complied with its duty to facilitate public participation in any particular case, the court will consider what parliament has done in that case. the question will be whether what parliament has done is reasonable in all the circumstances. And factors relevant to determining reasonableness would include rules, if any, adopted by parliament to facilitate public participation, the nature of the legislation under consideration, and whether the legislation needed to be enacted urgently…*** 1. The 7th respondent argued that the fact that the views of some people did not carry the day cannot be the basis for invalidating the legislation. The 7th respondent further cited the case of **British American Tobacco PLC** (supra) where the Supreme Court of Kenya set out the following principles governing public participation- ***Guiding Principles for public participation*** 1. ***As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.*** 2. ***The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.*** 3. ***The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.*** 4. ***Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.*** 5. ***Public participation is not an abstract notion; it must be purposive and meaningful.*** 6. ***Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.*** 7. ***Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.*** 8. ***Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.*** 9. Further reliance was placed in the case of **Republic vs County Government of Kiambu, *ex parte* Robert Gakuru & Another [2016] eKLR** where the court held that- ***It must be appreciated that the yardstick for public participation is that a reasonable opportunity has been given to the members of the public and all interested parties to know about the issue and to have an adequate say. It cannot be expected of the legislature that a personal hearing will be given to every individual who claims to be affected by the laws or regulations that are being made. What is necessary is that the nature of the concerns of different sectors of the parties should be communicated to the law maker and taken in formulating the final regulations. Accordingly, the law in that the forms of facilitating an appropriate degree of participation in the law making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to reasonable opportunity will depend on the circumstances of each case. therefore, the mere fact that particular views have not been incorporated in the enactment does not justify invalidating the enactment in question.*** 1. The 7th respondent affirmed that the impugned Act was procedurally and legally subjected to public participation in accordance with the Constitution and the Standing Orders of the house. The petitioners were notified about the impending legislation and were given a reasonable opportunity to make their representations to the National Assembly regarding the Bill and they cannot turn around now and claim foul play. 2. On the third issue, the 7th respondent submitted that an Act of Parliament is presumed to be constitutional on the basis that parliament understands and appreciates the needs of the people. Reliance was placed in the case of **Hambarrda Wakhana vs Union of India [1960] AIR 554**, where the court held that:- ***In examining the constitutionality of a statute, it must be assumed that the legislature understands and appreciates the needs of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assembled in a legislature enacts laws which they consider to be reasonable for the purpose of which they are enacted. The presumption is therefore in favour of the constitutionality of an enactment.*** 1. Further reliance was placed in the case of **Ndayanabo vs AG [2001] 2 EA 485** where the court affirmed the principle by holding that:- ***In interpreting the constitution, the court would be guided by the general principle that there is a rebuttable presumption that the legislation is constitutional hence the onus of rebutting the presumption rests on those who challenge that legislation’s status save that, where those who support a restriction on a fundamental right rely on a clawback or exclusion clause, the onus is on them to justify the restriction.*** 1. Like dependence was placed in the Indian case of **Dr. Jaya Thakur & ORS vs Union of India & ANR, Writ Petition No. 14 of 2024** where the court observed:- ***It is the well settled position of law that in matters involving the constitutionality of legislations, courts are cautious and show judicial restraint in granting interim orders. Unless the provision is ex facie unconstitutional or manifestly violates fundamental rights, the statutory provision cannot be stultified by granting an interim order. Stay is not ipso facto granted for mere examination or even when some cogent contention is raised. Suspension of legislation pending consideration is an exception and not the rule. The said principle keeps in mind the presumption regarding the constitutionality of legislation as well as the fact that the constitutional challenge when made may or may not result in success. The courts do not unless eminently necessary to deal with the crises situation and quell disquiet, keep the statutory provision in abeyance or direct that the same be not made operational.*** 1. The 7th respondent argued that statutes ought to be interpreted liberally and intentionally with a view of the real purpose they ought to achieve. Reliance was placed in the case of **Heydon (1584)** which requires that courts discern four things when ruling on the constitutionality of statutes namely- 2. ***What was the law before the enactment of the Act?*** 3. ***What was the mischief or defect for which the old law did not provide?*** 4. ***Whet remedy is the Act or law intended to cure?*** 5. ***The true reason for the remedy.*** 6. Further reliance was placed in the case of **Olum & Another vs Attorney General of Uganda [2002] 2 EA 508** where the court held- ***To determine the constitutionality of a section of a statute or an Act of Parliament the court has to consider the purpose and effect of the impugned statute or section thereof. If its purpose does not infringe on a right guaranteed by the Constitution, the court has to go further and examine the effect of its implementation. If either its purpose or the effect of its implementation infringes a right guaranteed by the Constitution, the impugned statute or section thereof shall be declared unconstitutional.*** 1. Further reliance was placed in the case of **Law Society of Kenya vs Attorney General & 2 Others [2013] eKLR** where the court held that there is a general presumption of law that statutes enacted by parliament are constitutional and the burden falls on the person who alleges otherwise to rebut this presumption. The basis for this presumption stems from the fact that the constitution mandates parliament to enact laws and do so within the realm of people representation. 2. Like dependence was placed in the case of **Metropolitan PSV Sacco Union Ltd & 25 Others vs County of Nairobi Government (2013)** where it was held that it is not for courts to decide what is an appropriate, wise or right legislative provision. Further in **Poverty Alleviation Network & Others vs President of the Republic of South Africa (2008) ZACC** where it was provided that a court cant interfere with legislation simply because it may disagree with its purpose or believes that it should be achieved differently. 3. The 7th respondent submitted that the fundamental objective of the doctrine of separation of powers is to safeguard citizens’ liberties and guard against tyranny. It further submitted that the judiciary while exercising its constitutional mandate must at all times treat itself to sufficient caution and restrain to ensure that it doesn’t engage in the endless business of judicial aggrandizement which ultimately waters down the doctrinal tenets of separation of powers. 4. On the fourth issue, the 7th respondent submitted that the national government legislation can prevail over county legislation if it applies uniformly throughout Kenya; provides for a matter to be dealt with effectively, requires uniformity across the nation and is geared towards preventing unreasonable action by a county that is prejudicial to the economic, health or security interests of Kenya. Further **Article 96(2) of the Constitution** underscores the fact that the constitution anticipates bills touching on matters that are a function of county governments being legislated by parliament provided that there is approval of Senate. Senate represents the counties and serves to protect the interests of the counties and their governments. 5. On the fifth issue, the 7th respondent submitted that the definition of community groups in the Act endeavours to provide an interpretation which is consistent with the scope of the impugned Act and it attempts to distinguish “community groups” from other associations regulated by other Acts of Parliament. It does not in any way foster discrimination or limited fundamental rights and freedoms enshrined in the Constitution. On the issue that Section 3(2)(c) of the Act being unconstitutional because it imposes a limitation on the exercise of rights or fundamental freedoms in violation of Article 24, the 7th respondent submitted that the provision does not in any way limit the fundamental rights of members of the community groups enshrined in Articles 32 and 33 of the Constitution. The Director of Social Development will only be performing his role under the Act. Further the 7th respondent argued that Section 6(e) and (h) of the impugned Act did not violate Articles 32, 33 and 36 of the Constitution as the Social Development Committee will be performing its role under the Act in a bid to meet the objective of the Act, which is to provide a regulatory framework. Further on Sections 12 – 15 of the impugned Act being in violation of Articles 36 and 47, Section 12 is meant to address any concerns that may relate to violation of public policy which is well captured in the definition of a community group in Section 2 of the Act and Section 13 is in line with the requirement of Article 47 of the Constitution. 6. On the issue of costs and damages, the 7th respondent argued that the matter is a public interest litigation and parties ought to meet their own costs. Further, being public interest litigation there was nothing to warrant payment of exemplary, general, consequential and punitive damages. Reliance was placed in the case of **People’s Union for Democratic Rights & Others vs Union of India & Others [1982] 3 SCC 235** where the court held:- ***Public interest litigation is essentially a cooperative or collaborative effort by the petitioner, the state or public authority and the court to secure observance of constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society.*** 1. Further reliance was placed in **Kenya Anti-corruption Commission vs Deepak Chamanlal Kamni & 4 Others [2014] eKLR** where the court held that- ***A matter of public interest must be a matter in which the whole society has a stake, anything affecting the legal rights or liability of the public at large.*** **The 8th Respondent’s Submissions.** 1. The 8th respondent identified three issues for determination as follows: whether the impugned Act is unconstitutional for being too broad and vague; whether sufficient public participation was conducted by the 8th respondent during the enactment of the Bill and whether the issues raised in the petition are ripe for determination by this court. On the first issue, the 8th respondent submitted that it considered and passed the Bill in accordance with the Constitution and its Standing orders after which the Bill was sent for presidential assent as the Act was a Bill concerning county governments as defined under **Article 110 of the Constitution**. Further on the definition of community groups under Section 2 of the CGRA being too broad and vague, the 8th respondent argued that the petitioners are seeking the court’s intervention to direct the legislature on how to legislate yet **Article 94 of the Constitution** vests the exclusive mandate of law making to parliament. 2. The 8th respondent further affirmed that the said definition is not ambiguous as ambiguity exists where the provision in a statute is reasonably capable of more than one meaning and the two or more meanings or interpretations must be derived from the intentions of the statute and not other parties’ interpretations. In determining whether the text of a statue is ambiguous and vague, the courts must look at the entire context of the statute and not just the said text Reliance was placed in the case of **Petition 150 & 234 of 2016 (Consolidated) EG & 7 Others vs Attorney General; DKM & 9 Others (Interested Parties); Katiba Institute & Another (Amicus Curiae)** where the court held:- ***Prior to determining whether the challenged language is overbroad, we must properly construe its meaning. In doing so, we must read the text as a whole, assigning a meaning to every word and phrase, and nor permitting any portion of the text to be rendered redundant. Thus, the various forms of sexual conduct, natural, indecent, against the order of nature, and gross indecency listed in the impugned provisions must each be accounted for and assigned distinct meanings.*** ***The Constitution requires that judicial officers read legislation where possible to give effect to its fundamental values. Consistent with this, when the constitutionality of legislation is in issue, courts are under a duty to examine the purpose of an Act and to read the provisions of the legislation so far as is possible to conform with the Constitution.*** 1. The 8th respondent further submitted that the petitioners are interpreting specific sections of the law in isolation. Whereas Section 12 grants the Director of Social Development some discretion in accepting or rejecting applications for registration and renewal of community groups, a reading of the whole text from sections 12 to 14 gives the procedure that the Director will follow and the reasons that can make the Director reject an application. The law also provides the cause of action to take in case the director rejects an application. Thus the discretion of the director is guided by law. 2. On the second issue, the 8th respondent affirmed that the Community Groups Registration Bill was introduced to Senate through a 1st reading on 22nd December 2021 pursuant to Article 110(4) of the Constitution and thereafter committed to the Standing Committee on Labour and Social welfare for consideration and public participation pursuant to **Article 118 of the Constitution** and **Standing Order 145(5) of the Senate Standing Orders**. The Senate Committee then placed an advertisement in the Daily Nation and Standard newspapers of 31st December 2021 inviting interested stakeholders and members of the public to submit written memoranda on the said bill. Upon submission of the written memoranda by different stakeholders, the Senate Committee held a virtual meeting on 2nd February 2022 with the said stakeholders. The Senate Committee then analysed the submissions and presentations that were received and submitted its report that contained the proposals for amendment of the Bill to the House. Thus the 8th respondent affirmed that it afforded members of the public and interested stakeholders a reasonable opportunity to know about the impugned Bill and to offer their views through public participation if they wanted to. 3. The 8th respondent cited the case of **Doctors for Life International vs Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC)** where the standard of adequate public participation was described as follows:- ***Thus construed, there are at least two aspects of the duty to facilitate public involvement. The first is the duty to provide meaningful opportunities for public participation in the law making process. The second is the duty to take measures to ensure that people have the ability to take advantage of the opportunities provided.*** 1. The 8th respondent submitted that it took reasonable steps to provide a meaningful opportunity for the public to participate in the law-making process by placing an advertisement on newspapers with country wide circulation and further held virtual meetings with stakeholders on 2nd February 2022. Reliance was placed in the case of **Nairobi Metropolitan PSV Saccos Union Limited & 25 Others vs County Government of Nairobi & 3 Others [2013] eKLR** where the court held:- ***The forms of facilitating an appropriate degree of participation in the law making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.*** 1. Further in **National Assembly & Another vs Okoiti & 55 Others (Civil Appeal E003 of 2023 & E016, E021, E049, E064 & E080 of 2024 (Consolidated) [2024] KECA 876 (KLR)**, the court held that there is no requirement that all proposals and views collected from the public participation should be carried and incorporated in a Bill. It held:- ***Further, for public participation to be considered effective, it does not mean that all proposals and views presented during public participation must be accepted. The National Assembly is only required to afford members of the public a reasonable opportunity to present their views and as was held by Lenaola J (as he then was) in Nairobi Metropolitan PSV Saccos Union Limited & 25 Others vs County Government of Nairobi & 3 Others [2013] eKLR; public participation is not the same as saying that public views must prevail.*** 1. The 8th respondent reiterated that it complied with the principles that govern public participation as set out in the Supreme Court case of **British American Tobacco PLC vs CS Ministry of Health & Others (Supreme Court Pet. No. 5 of 2017) (2019) eKLR**:- ***Guiding Principles for public participation*** 1. ***As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.*** 2. ***The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.*** 3. ***The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.*** 4. ***Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.*** 5. ***Public participation is not an abstract notion; it must be purposive and meaningful.*** 6. ***Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.*** 7. ***Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.*** 8. ***Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.*** 9. ***Components of meaningful public participation include the following:*** 1. ***clarity of the subject matter for the public to understand;*** 2. ***structures and processes (medium of engagement) of participation that are clear and simple;*** 3. ***opportunity for balanced influence from the public in general;*** 4. ***commitment to the process;*** 5. ***inclusive and effective representation;*** 6. ***integrity and transparency of the process;*** 7. ***capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.*** 10. On the final issue, the 8th respondent cited **Article 119 of the Constitution** and argued that the procedure laid down in **Petitions to Parliament (Procedure) Act 2012** provide an avenue for addressing the issues raised by the petitioners where they challenge some provisions of the CGRA as the provisions are not unconstitutional but the petitioners feel aggrieved with the procedure laid down in law for registration and renewal of registration by community groups. Thus, the petitioners should have filed a petition in parliament with proposals for amendment of relevant sections of the impugned Act and parliament would have acted accordingly. Reliance was placed in the case of **Faraj & 3 Others vs Police & 2 Others [2022] KEHC 287 (KLR)** where the court held that:- ***The doctrine of ripeness and constitutional avoidance gives credence to the concept that the constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies, the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common law remedies are part of the legal system.*** 1. The petitioners have not demonstrated any attempts to utilize the said avenue prior to the filing of the instant petition and neither have they provided a substantial justification for failing to do so. Further reliance was placed in the case of **Omwoyo vs Attorney General & 4 Others [2024] KEHC 7511 (KLR**) where the court stated:- ***The doctrine of constitutional avoidance does not divest this court of jurisdiction to hear and determine constitutional petitions. The doctrine only restrains the court from hearing and determining a matter where there exists another appropriate forum that can hear and determine the matter effectively.*** **Analysis and Determination.** 1. Upon careful assessment of the pleadings, the parties depositions and their respective submissions, the following issues fall for determination: - 2. ***Whether the petition meets the threshold for a constitutional petition.*** 3. ***Whether the Court lacks jurisdiction to entertain the Petition on the ground of non-exhaustion of remedies in view of the Petitioner’s failure to Petition Parliament pursuant to Article 119 of the Constitution prior to seeking judicial intervention*** 4. ***Whether the Community Groups Registration Act, 2022 is unconstitutional for violating Article 10 (2) (a) and Article 118 (b) of the Constitution due to lack of meaningful and effective public participation prior to its enactment*** 5. ***Whether the Community Groups Registration Act, 2022 is an unconstitutional encroachment of functions of devolved governments by the national government in violation of the Constitution*** 6. ***Whether Sections 2, 3(1), 12(b), 13 and 14 of the Community Groups Registration Act lack legal certainty, thereby offending the rule of law principle under Article 10 (2) (a) of the Constitutional rendering these provisions unconstitutional, null and void*** 7. ***Whether Sections 3(2)(c), 6(e) & (h) and 12-14 pass the Constitutional threshold of reasonable and justifiable limitation under Article 24 or whether they infringe upon the rights guaranteed under Article 32, 33, 36 and 37 of the Constitution, rendering them unconstitutional null and void.*** 8. ***Whether the 1st respondent violated the 2nd petitioner’s right under Article 35 of the Constitution.*** 9. ***Whether the petitioners are entitled to the orders sought.*** 10. ***Whether the petition meets the threshold for a constitutional petition.*** 11. In the 7th Respondent’s Grounds of Opposition dated 11th March, 2024; the 7th Respondent opposed the Petition, among other reasons, that the Petition does not meet the test laid down in Anarita Karimi Njeru v Republic (1976) eKLR on the basis that it was not pleaded with reasonable degree of precision. 12. A constitutional must satisfy the basic pleading threshold. It must set out with reasonable degree of precision, the specific constitutional provisions that are alleged to have been violated or threatened with violation and the manner of such violation and/or threatened violation. This principle was laid down in the case of **Anarita Karimi Njeru vs Republic (1979) KLR** where the Court held as follows: - ***“If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with precision that of which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed.*** 1. The ratio was upheld in the case of **Mumo Matemu vs** **Trusted Society of Human Rights Alliance (2014) eKLR** where the court stated thus: ***We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by the court.*** ***The principle in Anarita Karimi Njeru underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution. Procedure is also a handmaid of just determination of cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenant of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru that established the rule that requires reasonable precision of framing of issues in Constitutional petitions is an extension of this principle.*** 1. It is thus clear from the above case law that it is not sufficient to merely cite constitutional provisions. One must provide the particulars of the allegedinfringement and the manner of infringement to enable the respondent fairly appreciate and respond to the allegations of constitutional violations levelled against them. 2. In the instant case, the petition is stated to be founded on Articles 1, 2, 3(1), 10, 19, 20, 21(1), (3) & (4), 23(1) & (3), 24, 35(1), 36, 165, 174, 186(2), 244, 258(1) & (2) and 259 of the Constitution. A closer scrutiny reveals that the petition main focus is directed at Articles 24, 32, 33,35,36 and 47 as the constitutional provisions upon which the respondent’s conduct that is complained of directly engages. In this regard, the petitioners have framed their allegations with specificity and precision, carefully detailing the manner in which the particular provisions of the Community Groups Registration Act are not only inconsistent with the Constitutional provisions, but also infringe their right to associate and form community groups, and as a fact, cite a letter issued by the 5th Respondent unlawfully restricting the 1st Petitioner’s registration process on the strength of the impugned provisions of the Act. It is my considered view that the present Petition meets the threshold of pleading a constitutional petition. ***Whether the Court lacks jurisdiction to entertain the Petition on the ground of non-exhaustion of remedies in view of the Petitioner’s failure to Petition Parliament pursuant to Article 119 of the Constitution prior to seeking judicial intervention*** 1. The 8th respondent citing **Article 119 of the Constitution** argued that the procedure laid down in **Petitions to Parliament (Procedure) Act 2012** provide an avenue for addressing the issues raised by the petitioners. The 8th Respondent contended that the challenge on the provisions of the CGRA was not because they were unconstitutional but the petitioners were aggrieved with the procedure laid down in law for registration and renewal of registration by community groups. As such, the 8th Respondent submitted that the petitioners ought to have filed a petition in parliament with proposals for amendment of relevant sections of the impugned Act. 2. Article 119 of the Constitution provides as follows: * 1. ***Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any legislation.*** 2. ***Parliament shall make provision for the procedure for the exercise of this right.*** 3. The Petitions to Parliament (Procedure) Act provides under Section 4 and 5 as follows: ***Procedure for presenting petition*** * + 1. ***A petition to the National Assembly or the Senate shall be—*** 1. ***submitted to the Clerk of the relevant House by the petitioner; or*** 2. ***presented by a member of the National Assembly or the Senate on behalf of a petitioner, with the consent of the relevant Speaker.*** ***(2) Notwithstanding section 4(1)(b), a member of the National Assembly or the Senate shall not be eligible to present a petition on his own behalf.*** ***(3) The Clerk of the relevant House shall, within seven days of the date of receipt of the petition, review the petition to ascertain whether the petition meets the requirements of this Act.*** ***(4) Where the Clerk of the relevant House of Parliament considers that a petition does not comply with section 3, the Clerk may give such directions as are necessary to ensure that the petition is amended to comply with that section.*** ***(5) A petition shall not be rejected merely because it is not addressed to the Clerk of the relevant House of Parliament, and where a petition is addressed to the Clerk of a House that has no authority to deal with the matter; the Clerk of that House shall refer the petition to the Clerk of the other House.*** ***Consideration of petition*** ***The Clerk shall, if satisfied that the petition meets the requirements of this Act, forward the petition to the Speaker of the relevant House for tabling in the House.*** * + 1. ***A petition that is tabled in Parliament under this Act shall be considered in accordance with the Standing Orders of the relevant House.*** 2. ***The Clerk of the relevant House of Parliament shall, within fifteen days of the decision of the relevant House, in writing, notify the petitioner of the decision of the House.*** 1. Discussing the implication of this Article in **Pharmaceutical Society of Kenya & another v Attorney General & 3 others [2021] KEHC 85 (KLR)** the Court determined as follows: ***39. Likewise, in the case of Council of Governors & 3 others v Senate & 53 others [2015] eKLR it was held that:*** ***“71. It is useful, however, in closing on jurisdictional questions, to address ourselves to the provisions of article 119(1) of the Constitution. The AG submits that the petitioners ought to have approached Parliament in accordance with the provisions of article 119(1) prior to filing its petition. Article 119(1) and (2) are in the following terms:*** ***“Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal legislation.*** ***Parliament shall make provision for the procedure for the exercise of this right.”*** ***72. The question is whether this provision is intended to take away the right of a party to question the constitutionality of an Act of Parliament, or indeed any action taken by the legislature, guaranteed under articles 22 and 258. Further, whether it can also be taken as ousting the jurisdiction of the Court under article 165(3)(d) to determine any question respecting the interpretation of the Constitution, including “the question whether any law is inconsistent with or in contravention of” the Constitution,….*** ***73. In our view, the answer must be in the negative. Doubtless, article 119(i) will serve a useful purpose in allowing citizens to petition Parliament to consider matters of concern to them that are within the purview of Parliament, including the repeal or amendment of legislation. It appears to us, however, that article 119 is not intended to cover situations such as is presently before this Court. The question of the constitutionality of the impugned CGAA was raised with Parliament prior to its enactment. As deposed by Mr Charles Nyachae, the Chairman of CIC, in his affidavit sworn on September 19, 2014, the issue had been brought to the attention of Parliament through CIC’s Advisory Opinion in the month of August 2014, prior to the enactment of the CGAA. Parliament, nonetheless, appears to have disregarded the concerns raised regarding its conformity with the Constitution and proceeded to enact the legislation.*** ***74. It would therefore be, in our view, for the Court to abdicate its responsibility under the Constitution to hold that a party who considers that legislation enacted by Parliament in any way violates the Constitution is bound to first petition Parliament with respect to the said legislation. The constitutional mandate to consider the constitutionality of legislation is vested in the High Court, and articles 2(4) and 165(3(d)(i) mandate this Court to invalidate any law, act or omission that is inconsistent with the Constitution. This is in harmony with the mandate of the courts to be the final custodian of the Constitution.”*** 1. The 8th respondent’s contention that the Petitioners failure to first petition Parliament under Article 119 of the Constitution to amend the impugned law renders their Petition untenable holds no water. Judicial precedents alluded to above hold that this Court is the one constitutionally empowered to hear and determine the constitutionality of the question of whether any law is inconsistent with or in contravention of the Constitution or whether anything said to be done under the authority of the Constitution or of any law is inconsistent with the Constitution (Article 165 (d) i & ii). These are the very issues raised in the instant Petition. ***Whether the Community Groups Registration Act, 2022 is unconstitutional for violating Article 10 (2) (a) and Article 118 (b) of the Constitution for lack of meaningful and effective public participation prior to its enactment*** 1. Public participation is provided for under Article 10(2)(a) and Article 118 (1) (b) of the Constitution as follows: ***Article 10:*** *(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;* ***Article 118:*** *Parliament shall-* *b) Facilitate public participation and involvement in the legislative and other business of Parliament and its Committees.* 1. This principle has been affirmed by Courts in various judicial decisions. In **Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others (2015) eKLR** the Court stated as follows: ***“88. As our case law has now established, public participation is a national value that is an expression of the sovereignty of the people as articulated under Article 1 of the Constitution. Article 10 makes public participation a national value as a form of expression of that sovereignty. Hence, public participation is an established right in Kenya; a justiciable one – indeed one of the corner stones of our new democracy. Our jurisprudence has firmly established that Courts will firmly strike down any laws or public acts or projects that do not meet the public participation threshold. Indeed, it is correct to say that our Constitution, in imagining a new beginning for our country in 2010, treats secrecy on matters of public interest as anathema to our democracy.”*** 1. Further, a three-judge bench in **Institute of Social Accountability & another v National Assembly & 4 others (2015) eKLR** held: ***“76. How public participation is given effect will vary from case to case but it must be clear, upon examination of the legislative process, that a reasonable level of participation has been afforded to the public. In Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC) at para. 630, Sachs J., noted that;*** ***The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”*** 1. In **Robert N. Gakuru & Others vs Governor Kiambu County & 3 others (2014) eKLR** the Court stated thus: ***“75. In my view public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates. It is my view that it behoves the County Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively. It is not just enough in my view to simply “tweet” messages as it were and leave it to those who care to scavenge for it. The County Assemblies ought to do whatever is reasonable to ensure that as many of their constituents in particular and the Kenyans in general are aware of the intention to pass legislation…"*** 1. The Supreme Court provided the framework for public participation in the case of **British American Tobacco Kenya PLC vs Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) [2019] KESC 15(KLR)** as follows:- ***From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the* *Supreme Court Act, we would like to delimit the following framework for public participation.*** ***Guiding Principles for public participation*** 1. ***As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.*** 2. ***The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.*** 3. ***The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.*** 4. ***Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.*** 5. ***Public participation is not an abstract notion; it must be purposive and meaningful.*** 6. ***Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.*** 7. ***Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.*** 8. ***Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.*** 9. ***Components of meaningful public participation include the following:*** 1. ***clarity of the subject matter for the public to understand;*** 2. ***structures and processes (medium of engagement) of participation that are clear and simple;*** 3. ***opportunity for balanced influence from the public in general;*** 4. ***commitment to the process;*** 5. ***inclusive and effective representation;*** 6. ***integrity and transparency of the process;*** 7. ***capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.*** 10. As to who bears the burden of establishing that meaningful public participation was conducted, **the Supreme Court in Attorney General & 2 Others v Ndii & 79 Others 2022 KESC 8 KLR** held that state organs bear the burden of demonstrating that there was adequate public participation. The Court stated: ***“49. By dint of section 112 of the Evidence Act, once there was an allegation of lack of public participation, the burden shifted to the person charged with the responsibility of performing the same to establish adequate public participation. The evidence before the court showed that there was a reasonable attempt at public participation with respect to the impugned initiative. There was reasonable public participation with respect to the Amendment Bill save for the Second Schedule to the impugned Bill.”*** 1. As to how meaningful public participation ought to be assessed, the Supreme Court held: ***“Components of meaningful public participation included the following:*** * + 1. ***clarity of the subject matter for the public to understand;*** 2. ***structures and processes (medium of engagement) of participation that were clear and simple;*** 3. ***opportunity for balanced influence from the public in general;*** 4. ***commitment to the process;*** 5. ***inclusive and effective representation;*** 6. ***integrity and transparency of the process;*** 7. ***capacity to engage on the part of the public, including that the public had to be first sensitized on the subject matter.*** ***It was against those standards that allegations of lack of public participation ought to be assessed. The constitutional threshold was that of reasonableness of notice and opportunity for public participation.”*** 1. From the record, the petitioners argue that the respondents failed to conduct adequate and meaningful and effective public participation as they only engaged stakeholders who were all state actors. The Petitioners stated that in the Report submitted to the National Assembly, it included a section on public participation that only addressed submissions by State organs and did not mention even a single comment from individuals, community groups or other non-governmental organisations. That the only stakeholders identified to have submitted their views were the **Ministry of Labour and Social Protection, the State Law Office**, the **Council of Governors** and the **Non-Governmental Organisations Coordination Board**. The Petitioners further state that the Committee Report states on 11th June, 2021, a notice was placed in the Daily Nation requesting the submission of memoranda in respect of the 14 Bills listed of which Community Groups Registration Bill formed part, with the requirement that written comments were to either be emailed or hand-delivered, but the Committee Report is silent on whether or not it received any written memoranda from individuals, community groups or other non-governmental organisations. The Senate Committee report states advert for the written memoranda to be submitted by email or hand delivered was put in the Standard Newspaper on 31/12/21. According to the Petitioner, the Senate Committee Report is similarly silent on receipt of any feedback from the public or community groups the Bill was intended to regulate. 2. In responding to the above, the 7th Respondent in the Replying Affidavit sworn on 14th October, 2024; confirms rather than mitigate this apparent deficiency. The Respondent swore that an advertisement was placed in the Daily Nation of 11th June, 2021 seeking comments on the Bill from members of the public then affirmed thus: **“22. The Committee received submissions from numerous stakeholders, including the Ministry of Labour and Social Welfare, the Ministry of Interior and Coordination of National Government, the Council of Governors and the Non-Governmental Coordination Board”** 1. Evidently, the list of ‘stakeholders’ who submitted the views was thus State actors and quasi-state actor, no members of the public, any community group or non-governmental organisation. This was so yet this was a law that was meant to regulate the majority of ordinary men and women in local villages and informal settlements who organise themselves in Women Chamas, Village/Mitaa Development Committees, Community table-banking schemes, community water projects, farming ventures and similarly organised groups. These are not men and women that you would expect will buy a copy of Daily Nation or Standard Newspaper every to keep abreast with the news and advertisements let alone write and send emails to the National Assembly and the Senate. The point is, the medium chosen was in the circumstances inherently restrictive. Moreover, it did not clarify the subject matter to those affected, did not offer balanced opportunity for public influence or offer inclusive representation of the target constituency or build capacity for that constituency to participate as guided by the Supreme Court. Indeed, there was no evidence at all that any attempt was made to reach out to the ordinary members of the public or community groups in a manner they would meaningfully contribute. 2. It is no wonder that the both the National Assembly Committee and the Senate Committee report were silent on whether any views were received from the public. Public participation that attracts only state actors while leaving out the public the law is intended to regulate is illusory and does not meet the threshold of meaningful, qualitative and effective public participation. Effective public participation is not a newspaper advertisement. 3. I find the process through which the Community Groups Registration Act, 2022 was enacted fell short of the constitutional standard of reasonableness of the notice and opportunity for qualitative and effective public participation hence violated Article 10 (2) (a) and 118 of the Constitution. The Act is thus unconstitutional on this ground. 4. Having determined that the Community Groups Registration Act, 2022 is unconstitutional for lack of adequate or meaningful public participation, the Court does not find it unnecessary to proceed beyond this point and consider the remaining substantial constitutional questions raised in the Petition, which include: * + - 1. *Whether the Community Groups Registration Act, 2022 unconstitutionally encroaches on the functions of devolved governments in violation of the Constitution* 2. *Whether Sections 2, 3(1), 12(b), 13 and 14 of the Community Groups Registration Act lack legal certainty, thereby offending the rule of law principle under Article 10 (2) (a) of the Constitutional rendering the provisions unconstitutional, null and void* 3. *Whether Sections 3(2)(c), 6(e) & (h) and 12-14 meet the constitutional threshold of reasonable and justifiable limitation under Article 24, or whether they infringe upon the rights guaranteed under Article 32, 33, 36 and 37 of the Constitution, rendering them unconstitutional null and void and,* 4. *Whether the 1st respondent violated the 2nd petitioner’s right under Article 35 of the Constitution.* ***Whether the Petitioners are entitled to the reliefs sought.*** 1. The Petitioners have demonstrated that there was no adequate, meaningful and effective public participation that was conducted prior o the enactment of the Community Groups Registration Act, 2022. 2. The Court is thus required to issue an **‘appropriate relief and including’** meaning that the Court may not be restricted to the list provided for in the Constitution or the prayers as enumerated in the Petition. 3. In **L A W & 2 others v Marura Maternity & Nursing Home & 3 others; International Community of Women Living with HIV (ICW) (Interested Party); Secretariat of the Joint United Nations Programme on HIV/AIDS & 2 others (Amicus Curiae) [2022] KEHC 17132 (KLR**) the Court affirmed this approach by holding thus: ***“244. As is the case in constitutional petitions, there are arrays of available remedies. what a court endeavours to do upon confirming of any infringement is to grant an appropriate remedy. Even in instances where a party fails to ask for a specific relief, a court, depending on the nature of the matter ought to craft an appropriate relief…”*** 1. In the circumstances, I am of the view that appropriate and proportionate remedies should be considered. These should ensure that corrective action is taken without abrupt disruption of the existing legal ecosystem to forestall anarchy. 2. This Court thus considers the following remedies as commending themselves for issuance: 3. **Declaration of unconstitutionality** A declaration is hereby issued that the Community Groups Registration Act (CGRA) was enacted without sufficient, effective and meaningful public participation, in direct violation of Articles 10 (2) (a) and 118 (b) of the Constitution, and is consequently, unconstitutional, null and void. 1. **Suspension of Declaration** The operation of the declaration of unconstitutionality is suspended for a period of six months to enable the Respondents undertake appropriate constitutional and legislative measures to address the unconstitutionality 1. **Consequence of default** In the event that the respondents fail to take the measures to address the unconstitutionality within the specified timeframe, the declaration of unconstitutionality shall take full effect upon expiry of six months from the date hereof, precisely, at 12.00 midnight on 10/2/2027. 1. **Order for costs** As this is Public Interest Litigation, I make no orders as to costs. ***Dated, Signed and Delivered Virtually at Nairobi this 10th day of September , 2026.*** **…………………………………..** **L N MUGAMBI** **JUDGE**