[2020] KEHC 6391 (KLR)
The court determined that, given the complexity and novelty of the constitutional and public health issues raised by the applications, it would be inappropriate to grant interlocutory orders without first allowing all parties to file full responses and submissions. The court emphasized the importance of a fair...
Source-derived case information.
- Citation
- [2020] KEHC 6391 (KLR)
- Parties
- Applicant: Muslims for Human Rights (MUHURI); Respondent: The Hon. Attorney General; Respondent: Cabinet Secretary, Ministry of Health; Respondent: Inspector General of Police
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 28 of 2020
- Procedural Posture
- Constitutional Petition / Interlocutory Applications and Preliminary Objection Prior to Substantive Hearing
- Outcome
- Directions issued for parties to file responses and submissions; no interlocutory orders granted at this stage.
- Judges
- DO Ogembo
- Legal Topics
- Covid 19 Regulations, Public Health Measures, Fundamental Rights Enforcement, Preliminary Objection, Interlocutory Orders
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Muslims for Human Rights (MUHURI)
Applicant
The Hon. Attorney General
Respondent
Cabinet Secretary, Ministry of Health
Respondent
Inspector General of Police
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Applications and Preliminary Objection Prior to Substantive Hearing
Legal Issues
- 1 Whether the applications raise novel constitutional and public health issues requiring substantive hearing.
- 2 Whether interlocutory orders should be granted before full inter-partes hearing.
- 3 Whether the parties should be allowed to file full responses and submissions before the matter is heard.
Ratio Decidendi
The court determined that, given the complexity and novelty of the constitutional and public health issues raised by the applications, it would be inappropriate to grant interlocutory orders without first allowing all parties to file full responses and submissions. The court emphasized the importance of a fair hearing and the need to consider any similar matters pending in other courts. Accordingly, the court directed the parties to exchange and file their responses and submissions within a specified timeframe, after which the applications would be heard together before the Duty Judge. The court also directed that the hearing would be conducted via Zoom, reflecting the ongoing public...
Court Disposition
Directions issued for parties to file responses and submissions; no interlocutory orders granted at this stage.
Orders
- Mr. Makuto to fully respond to Mr. Lumatete’s application dated 23/4/2020 within six days.
- Mr. Lumatete to fully respond to Mr. Makuto’s Notice of Motion and Preliminary Objection filed on 29/4/2020 within six days.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. 28 OF 2020
IN THE MATTER OF: ARTICLES 19, 20, 21, 22, 23, 27, 28, 35 AND 43 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER: OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS
UNDER ARTICLES 19, 20, 21, 22, 23, 27, 28, 35 AND 43 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: ENFORCEMENT OF THE CONSTITUTIONAL RIGHTS AS ENSHRINED
UNDER ARTICLES 27, 28, 35 AND 43 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: SECTION 27 AND 36 OF THE PUBLIC HEALTH ACT, CAP 242 LAWS OF KENYA
AND
IN THE MATTER OF: THE PUBLIC HEALTH (PREVENTION,
CONTROLAND SUPPRESSION OF COVID-19) RULES, 2020
BETWEEN
MUSLIMS FOR HUMAN RIGHTS (MUHURI).......................PETITIONER
AND
1. THE HON. ATTORNEY GENERAL
2. CABINET SECRETARY, MINISTRY OF HEALTH
3. INSPECTOR GENERALOF POLICE..............................RESPONDENTS
COURT/RULING
I have heard parties’ submissions on the two applications before the Court. In my view, the Covid-19 pandemic has caused a public confusion over standards and parameters along which we do things. In this pandemic, new directions emerge almost on a daily basis, and the Court also should not rush to make any orders without hearing parties substantively.
Mr. Lumatete’s application raises novel issues of serious public concern. However, these issues should be canvassed in a robust way through inter-partes hearing where every party is given a chance to make out their case.
Mr. Makuto’s Preliminary Objection and Notice of Motion also raise serious issues which this Court cannot gloss over by giving interlocutory orders.
The upshot is that this Court must have regard to any other similar matters which may have been filed in any other court registry in the country. Therefore, I will give the parties a chance to bring all evidence before the Court by way of full responses to their various applications. Accordingly, Mr. Makuto shall fully respond to Mr. Lumatete’s application dated 23/4/2020, and Mr. Lumatete shall also fully respond to Mr. Makuto’s Notice of Motion and Preliminary Objection both filed herein on 29/4/2020. The responses shall be done within six (6) days.
The matters will be heard together on 6/5/2020 before the Duty Judge Hon. P. J. Otieno. Parties are directed to exchange submissions simultaneously and file soft copies in Court.
The hearing will be via zoom.
E. K. OGOLA
JUDGE
29/4/2020