https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7698

Okoiti & another v Registrar of the Supreme Court & 4 others (Constitutional Petition 39 of 2019) [2026] KEHC 7698 (KLR) (Constitutional and Human Rights) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7698 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition 39 of 2019 B Mwamuye, J May 28, 2026 IN THE MATTER OF: ARTICLES 22(1) & (2)(c), 48, 50(1), 163(8) AND 258(1) & (2)(C) OF THE CONSTITUTION OF KENYA 2010. IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF ARTICLES 3(1), 10, 22,23, 25(c), 47, 48, 50(1), 73, 159(1) & 2(d), 160(1), 163(4), (7), (8) & (9), 258 AND 259(1) OF THE CONSTITUTION. IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF SECTIONS 10 AND 31 OF THE SUPREME COURT ACT NO. 7 OF 2011. IN THE MATTER OF: THE REASONABLENESS AND CONSTITUTIONAL AND LEGAL VALIDITY OF THE TIMELINES FOR MAKING APPEALS TO THE SUPREME COURT UNDER RULES 38(2)(b) and 41(g), (h) & (i) OF THE SUPREME COURT RULES, 2020, AND THE FAILURE TO PROVIDE IN THE RULES A MECHANISM FOR ANY PERSON TO INVOKE THE COURT’S JURISDICTION UNDER ARTICLE 163(7) OF THE CONSTITUTION. IN THE MATTER OF: THE MISADMINISTRATION OF JUSTICE AND THE ABROGATION OF ALL THE ARTICLES OF THE CONSTITUTION RELATING TO THE RIGHT OF ACCESS TO JUSTICE AND FAIR HEARING AT THE IMPUGNED RULES OF THE SUPREME COURT OF KENYA. Between Okiya Omtatah Okoiti 1st Petitioner Nyakina Wyclife Gisebe 2nd Petitioner and The Registrar of the Supreme Court 1st Respondent The Judiciary’s Rules Committee 2nd Respondent The Judicial Service Commission 3rd Respondent The Hon. Attorney General 4th Respondent The National Assembly 5th Respondent Judgment Introduction 1.What is before this court is the Petition, dated 21st March 2020 which concerns the constitutional validity of certain provisions of the Supreme Court Rules, 2020 relating to the computation of time for filing appeals and invocation of the jurisdiction of the Supreme Court of Kenya. The Petitioners, who describe themselves as public-spirited citizens affiliated with Kenyans for Justice and Development (KEJUDE) Trust, invoke Articles 22, 23, 165, and 258 of the Constitution and contend that the impugned Rules infringe constitutional guarantees relating to access to justice, fair hearing, fair administrative action, and the rule of law. 2.The Petition is instituted against the Registrar of the Supreme Court, the Judiciary Rules Committee, the Judicial Service Commission, the Honourable Attorney General, and the National Assembly, while Katiba Institute participates in the proceedings as an Interested Party. 3.The Respondents oppose the Petition on various grounds, including that the impugned Rules were lawfully enacted pursuant to the Constitution and the Supreme Court Act, that adequate procedural safeguards already exist within the Rules, and that the reliefs sought offend the doctrines of separation of powers, constitutional avoidance, and exhaustion of alternative remedies. The 5th Respondent additionally raises a preliminary objection challenging, inter alia, the standing of the 1st Petitioner and the propriety of invoking constitutional litigation in respect of matters said to fall within Parliament’s legislative mandate. 4.I shall now proceed to outline the respective parties’ cases before identifying the issues arising for determination. The Petitioners’ Case 5.The Petitioners describe themselves as adult Kenyan citizens resident within Nairobi City County and public-spirited constitutionalists affiliated with Kenyans for Justice and Development (KEJUDE) Trust, an organisation committed to the promotion of constitutionalism, democratic governance, and the rule of law. Invoking Articles 3, 22, 23, 165 and 258 of the Constitution, they contend that they have approached this Court in discharge of the constitutional obligation imposed upon every person to respect, uphold, and defend the Constitution. 6.The Petitioners challenge the constitutionality of Rules 4A(1)(b), 33(1), 38(2)(b), and 41(g), (h) and (i) of the Supreme Court Rules, 2020. Their principal grievance is that the impugned Rules fail to exclude from computation of time periods occasioned by delays in the preparation and delivery of certified proceedings and records by court registries, thereby exposing litigants to the risk of forfeiting appellate rights due to administrative inefficiencies beyond their control. According to the Petitioners, the continued running of time notwithstanding registry delay unjustly penalises diligent litigants and undermines the constitutional guarantee of substantive justice. 7.It is their case that the impugned framework violates Articles 25(c), 47, 48 and 50(1) of the Constitution relating to fair trial, fair administrative action, access to justice, and fair hearing, as well as Articles 10, 159, 163, 258 and 259 concerning constitutional supremacy, national values, and constitutional interpretation. They further contend that the Rules fail to provide an adequate procedural mechanism through which “any person” may invoke the jurisdiction of the Supreme Court of Kenya under Article 163(7) of the Constitution, thereby unlawfully restricting constitutional access to the Court. 8.The Petitioners argue that the impugned provisions are inconsistent with comparative procedural safeguards embodied in Rule 82 of the Court of Appeal Rules, 2010, which excludes from computation periods attributable to registry delay once proceedings are requested in time. They also rely on Section 57 of the Interpretation and General Provisions Act, contending that the law recognises exclusion of time where justice so requires and where delay is attributable to administrative processes beyond a litigant’s control. 9.In support of their challenge, the Petitioners rely on Olum & Another v Attorney General [2002] EA for the principle that constitutionality is determined not only by the purpose of legislation but also by its effect, and that a provision is unconstitutional where either its purpose or effect infringes constitutional rights. They further rely on Minister of Health v Treatment Action Campaign (2002) 5 LRC 216, where the Constitutional Court of South Africa affirmed the duty of courts to ensure compliance with constitutional obligations and to intervene where state action undermines protected rights. 10.The Petitioners submit that procedural rules must serve, rather than defeat, substantive justice. In that regard, reliance is placed on Moses Mwicigi & 14 Others v IEBC & 5 Others [2016] eKLR, where the Supreme Court observed that procedure is a handmaiden of justice and ought not to obstruct the vindication of substantive rights. They contend that requiring litigants whose appeals are deemed out of time to seek discretionary admission before a single Judge of the Supreme Court imposes an unjust procedural burden that undermines the right of appeal guaranteed under Article 163(4)(a) and (b) of the Constitution. 11.On constitutional governance and accountability, the Petitioners rely on Keroche Breweries Ltd & 6 Others v Attorney General & 10 Others [2016] eKLR, where the Court held that public authority is a trust to be exercised in fidelity to constitutional principles and accountability. They further cite Mombasa Law Society v Attorney General & Another [2021] eKLR for the proposition that Article 10 values bind all state organs and public authorities in the exercise of their mandates. Reliance is also placed on Githunguri v Republic [1986] KLR, where the Court underscored the centrality of the rule of law and constitutional integrity in the administration of justice. 12.The Petitioners further maintain that the Respondents failed to ensure that the impugned Rules conform to constitutional and statutory standards. In particular, they fault the Rules Committee under Article 163(8), the Judicial Service Commission under Article 172, the Attorney General under Article 156, and the National Assembly in its legislative oversight role over delegated legislation. 13.In answer to the 5th Respondent’s Preliminary Objection, the Petitioners maintain that Articles 22 and 258 of the Constitution expressly confer standing upon them to institute proceedings in the public interest, while Article 3(1) imposes a constitutional obligation upon every person to defend the Constitution. They reject the contention that Article 109(5) bars constitutional litigation, arguing instead that constitutional provisions must be read holistically and harmoniously. 14.On remedies, the Petitioners invoke Articles 2(4) and 23(3) of the Constitution and rely on Law Society of Kenya v Attorney General & Another Mohamed Abdulahi Warsame & Another (Interested Parties) [2019] eKLR, where the Court affirmed that constitutional remedies must be effective and may include declaratory and structural reliefs necessary to vindicate constitutional rights. They also rely on Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17, where the Constitutional Court emphasised that constitutional remedies must effectively redress infringements and prevent future violations. 15.Accordingly, the Petitioners seek the following reliefs:A.THAT this Honourable Court makes a declaration that the computation of time under Rules 38(2)(b) and 41(g), (h) & (i) of the Supreme Court Rules, 2020 must exclude the time the Registrar of the Court of Appeal or other tribunal takes to prepare and avail the certified record of proceedings and any other documents required for lodging an appeal to the Supreme Court.B.THAT this Honourable Court makes a declaration that the Supreme Court Rules, 2020 2012 do not provide mechanism for any person to invoke the Supreme Court’s jurisdiction under article 163(7) of the Constitution.C.THAT this Honourable Court makes a declaration that the Rules Committee of the Judiciary must adhere strictly to the Constitution and statute when formulating the rules for the exercise of jurisdiction by the Supreme Court.D.THAT this Honourable Court gives an order compelling the respondents to amend Rule 38(2)(b) and 41(g), (h) & (i) 33(1) of the Supreme Court Rules, 2020 2012 so that the computation of time excludes the time the Registrar of the Court of Appeal or other tribunal takes to prepare the certified record of proceedings and any other document required for lodging an appeal to the Supreme Court.E.THAT this Honourable Court gives an order compelling the respondents to amend the Supreme Court Rules, 2020 2012 to provide mechanism for any person to invoke the Supreme Court’s jurisdiction under Article 163(7) of the Constitution.F.THAT the costs of this Petition be borne by the respondents.G.THAT this Honourable Court gives any other orders required to advance the cause of justice and the rule of law in this case. 1St, 2Nd And 3Rd Respondents’ Case 16.The 1st, 2nd, and 3rd Respondents oppose the Amended Petition through grounds of opposition and written submissions, contending that the Petition is misconceived, incompetent, and devoid of merit. It is their position that the Petition offends the constitutional doctrines of separation of powers, constitutional avoidance, and exhaustion of alternative remedies, and improperly invites the Court to intrude into legislative and administrative functions constitutionally vested in Parliament and other constitutional organs. 17.The Respondents submit that, in substance, the Petition seeks to compel amendment of the Supreme Court Act No. 7 of 2011 and the Supreme Court Rules, 2020, a function which, they argue, falls exclusively within the legislative domain. Reliance is placed on Articles 94, 109 and 163(9) of the Constitution to demonstrate that the enactment and amendment of legislation is the preserve of Parliament, and that the Supreme Court Act was validly enacted pursuant to constitutional authority. They therefore contend that the Court lacks jurisdiction to direct Parliament or constitutional bodies to amend legislation or subsidiary rules, as to do so would amount to a violation of the doctrine of separation of powers and an impermissible usurpation of legislative authority. 18.With regard to the Registrar of the Supreme Court of Kenya, the Respondents rely on Sections 9 and 10 of the Supreme Court Act, submitting that the Registrar’s mandate is strictly administrative and procedural, including management of the Court registry, custody of records, taxation of costs, and facilitation of court processes. It is therefore argued that the Registrar possesses no constitutional or statutory authority to amend legislation or promulgate rules, and that the reliefs sought against that office are consequently misconceived. 19.In relation to the Judicial Service Commission, the Respondents invoke Article 172 of the Constitution and submit that the Commission’s mandate is limited to promoting judicial independence, facilitating the effective administration of justice, recommending appointments, and exercising disciplinary oversight over judicial officers. According to the Respondents, the Petition improperly seeks to expand the constitutional mandate of the Commission beyond the limits prescribed by the Constitution. 20.Concerning the Judiciary Rules Committee, the Respondents contend that its role is confined to formulation of procedural rules and advisory functions within the framework established by statute, and does not extend to amendment of primary legislation such as the Supreme Court Act. They further submit that the Petitioners have not demonstrated that they engaged the Rules Committee or pursued any administrative mechanism before invoking the constitutional jurisdiction of the Court. 21.The Respondents further argue that the Petition is premature and contrary to the doctrines of constitutional avoidance and exhaustion. In support of this position, reliance is placed on Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR, where the Supreme Court affirmed that constitutional adjudication should be avoided where disputes may properly be resolved through alternative legal mechanisms. They also rely on Mutanga Tea & Coffee Company Ltd v Shikara Ltd & Another [2015] eKLR for the proposition that where a statute establishes dispute resolution procedures or administrative remedies, such mechanisms must ordinarily be exhausted before recourse is had to constitutional litigation. Similar reliance is placed on Anthony Miano & Others v Attorney General & Others [2021] eKLR, where the Court reiterated that constitutional jurisdiction ought not to be invoked where adequate alternative remedies exist. 22.It is therefore the Respondents’ case that the Petitioners ought first to have pursued the mechanisms available under the Supreme Court Rules, including applications for extension of time, engagement with the Rules Committee, or recourse to the legislative process under Article 109 of the Constitution. 23.On the merits, the Respondents maintain that Rules 33(1) and 41(g), (h), and (i) of the Supreme Court Rules are constitutionally valid and were lawfully enacted pursuant to Article 163(8) of the Constitution and the Supreme Court Act. They submit that the impugned Rules strike a proper balance between access to justice and the need for procedural certainty, efficiency, and orderly administration of justice before the Supreme Court. According to the Respondents, the Rules already contain adequate safeguards, including discretionary extension of time, to ameliorate any hardship arising from administrative delay. 24.The Respondents consequently contend that no constitutional violation has been demonstrated and that the Petition is founded upon a misapprehension of the constitutional and statutory framework governing the jurisdiction and procedure of the Supreme Court. They therefore urge the Court to dismiss the Petition with costs. 4Th Respondent’s Case 25.The 4th Respondent opposes the Further Amended Petition dated 21st March 2020 through Grounds of Opposition and written submissions, contending that the Petition is misconceived, devoid of merit, and constitutes an abuse of the process of the Court. It is submitted that the Petitioners have failed to plead, with the requisite precision, the manner in which the impugned provisions violate their constitutional rights, contrary to the principle enunciated in Anarita Karimi Njeru v Republic (1976–1980) KLR 1272, which requires a party alleging constitutional infringement to specifically identify the constitutional provisions violated and the manner of such violation. 26.The 4th Respondent further submits that the Petition is founded upon a misapprehension of Article 163(7) of the Constitution and the legal framework governing the Supreme Court. It is argued that the Supreme Court Rules, 2020 were lawfully promulgated pursuant to Article 163(8) of the Constitution and Section 31 of the Supreme Court Act, 2011, and are procedural instruments intended to operationalise the constitutional and statutory jurisdiction of the Supreme Court. According to the Respondent, jurisdiction is conferred by the Constitution and statute, and not by procedural rules; consequently, the impugned Rules cannot be invalidated on the basis that they allegedly restrict access to the Supreme Court. 27.The 4th Respondent maintains that the complaint regarding delays in the preparation and supply of certified proceedings does not disclose any constitutional violation. It is submitted that the Supreme Court Rules contain adequate remedial mechanisms, including provisions permitting extension of time, through which any prejudice occasioned by administrative delay may be addressed. In that regard, the Respondent contends that the impugned Rules promote, rather than hinder, access to justice by ensuring certainty, orderliness, and procedural efficiency in the administration of appeals before the Supreme Court. 28.On the interpretation of Article 163(7), the 4th Respondent submits that the Petitioners have misconstrued the scope and effect of the provision. It is argued that Article 163(7) merely affirms the binding nature of decisions of the Supreme Court upon all other courts and does not create an independent procedural right enabling any person to invoke the jurisdiction of the Court outside the constitutional and statutory framework established under Article 163(3), the Supreme Court Act, and the Rules made thereunder. The Respondent therefore contends that the impugned Rules properly regulate access to the Supreme Court within the parameters contemplated by Article 163(8) of the Constitution. 29.The 4th Respondent further submits that judicial intervention ought only to arise where there exists a clear violation of the Constitution, illegality, or irrational exercise of power, none of which has been demonstrated in the present Petition. It is argued that the Petition is predicated upon an erroneous understanding of the constitutional and statutory scheme governing appellate jurisdiction and procedure before the Supreme Court. 30.In its submissions, the 4th Respondent emphasises that the issues raised in the Petition implicate the delicate balance between access to justice and the public interest in the timely and efficient resolution of disputes. Reliance is placed on Hassan Nyanje Charo v Khatib Mwashetani & 3 others [2014] eKLR, wherein the Supreme Court underscored the constitutional significance of procedural timelines as an essential component of orderly adjudication and effective administration of justice. The Court in that decision recognised that while delays may affect litigants, timelines remain indispensable in safeguarding certainty, finality, and public confidence in the judicial process. 31.The 4th Respondent further submits that the jurisprudence in Hassan Nyanje Charo supra demonstrates that courts retain sufficient discretion to accommodate deserving litigants through extension of time where administrative delay has occurred and due diligence is demonstrated. Consequently, it is argued that the Petitioners have failed to establish that the impugned Rules occasion any unconstitutional impediment to access to justice. 32.It is additionally contended that invalidating or removing procedural timelines would undermine, rather than advance, the constitutional objective of access to justice by fostering uncertainty, encouraging indolence, and exacerbating delays in the judicial system, contrary to the principles of efficiency, finality, and expeditious disposal of disputes. 33.In conclusion, the 4th Respondent submits that the Petition is defective both in form and substance, discloses no constitutional violation, and is founded upon a fundamental misapprehension of the Constitution, the Supreme Court Act, and the Supreme Court Rules governing appellate procedure. The Court is therefore urged to dismiss the Petition with costs for being unmeritorious and contrary to the public interest in the efficient administration of justice. 5Th Respondent’s Case 34.The 5th Respondent, the National Assembly, opposes the Amended Petition and raises both a Preliminary Objection and substantive Grounds of Opposition, contending that the Petition is incompetent, misconceived in law, and devoid of evidential and legal basis. 35.At the threshold, the 5th Respondent challenges the locus standi of the 1st Petitioner, who is described as a State Officer and Senator for Busia County. It is contended that, by virtue of Article 109(5) of the Constitution, the said Petitioner is already vested with legislative competence within Parliament and ought to have pursued any proposed amendment to the impugned framework through the legislative process rather than constitutional litigation. 36.On the merits, the 5th Respondent submits that Rule 38 of the Supreme Court Rules, 2020, read together with Section 31(d) of the Supreme Court Act, 2011, prescribes constitutionally sanctioned timelines for the lodging of appeals before the Supreme Court of Kenya. It is contended that the requirement to comply with strict timelines is neither arbitrary nor oppressive, but is a necessary incident of constitutional adjudication designed to promote certainty, efficiency, and the expeditious disposal of disputes. Reliance is placed on Bernard Kibor Kitur v Alfred Kiptoo Keter & Another [2018] eKLR, where the Supreme Court, affirming Charo v Mwashetani & 3 Others (2014) KLR-SCK, emphasised that adherence to timelines is a “vital ingredient in the quest for efficient and effective governance under the Constitution.” Further reliance is placed on Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR for the proposition that extension of time is an equitable discretion exercisable only upon demonstration of sufficient cause. 37.The 5th Respondent further invokes the principle that procedural rules are indispensable to the fair administration of justice. In this regard, reliance is placed on Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees & 3 Others; Everest Limited & Another (Interested Parties) [2023] KESC 76 (KLR), where the Supreme Court held that procedural rules bind parties and courts alike and are essential to ensuring fairness, equality of arms, and the integrity of judicial proceedings. It is therefore submitted that the impugned Rules do not impede access to justice but rather facilitate its orderly and efficient administration. 38.On the alleged constitutional violations, the 5th Respondent submits that the Petitioners have failed to discharge the evidentiary burden required in constitutional litigation. Citing Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, it is argued that a petitioner must precisely identify the rights allegedly violated, the manner of violation, and the nexus between the impugned provisions and the alleged infringement. It is contended that no evidence has been tendered to demonstrate that any litigant has been denied access to the Supreme Court on account of the impugned timelines, nor that applications for extension of time under Rule 15(2) have been unreasonably denied. 39.With respect to Article 163(7) of the Constitution, the 5th Respondent submits that the provision has been misapprehended by the Petitioners. It is argued that the jurisdiction of the Supreme Court is strictly circumscribed under Article 163(3) and (4) of the Constitution and further regulated by Section 21A of the Supreme Court Act, 2011. The Respondent maintains that the restrictive appellate and review jurisdiction of the Court is a deliberate constitutional design aimed at preserving its specialised role in constitutional adjudication and matters of general public importance. Reliance is placed on Center for Rights Education and Awareness & Others v John Harun Mwau & 6 Others [2012] eKLR, where the Court cautioned against an “open-door policy” in appellate litigation on the basis that it would clog the judicial system and undermine orderly administration of justice. 40.On the question of institutional competence, the 5th Respondent submits that courts ought not to assume the role of a “super-legislature.” It is contended that any dissatisfaction with legislative policy ought to be addressed through Article 119 of the Constitution, which permits any person to petition Parliament to enact, amend, or repeal legislation. Reliance is placed on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, where the Court of Appeal held that courts do not sit in judgment over the wisdom or desirability of legislative choices and must respect constitutionally allocated institutional boundaries. 41.On costs, the 5th Respondent urges the Court not to condemn it to pay costs, submitting that it acts in a public capacity on behalf of the people of Kenya. Reliance is placed on Kenya Revenue Authority v Export Trading Company Limited [2022] KESC 31 (KLR), where the Supreme Court held that public bodies discharging regulatory functions ought not ordinarily be burdened with costs unless they act unreasonably or in bad faith. Further reliance is placed on Okiya Omtatah Okoiti & 2 Others v Attorney General & 14 Others [2023] KESC 31 (KLR), which underscores that public interest litigation is intended to advance constitutional justice rather than private financial gain. 42.The 5th Respondent maintains that the Petition discloses no constitutional violation, is unsupported by evidence, and improperly seeks to draw the Court into matters reserved for the legislative domain. It therefore prays that the Amended Petition be dismissed in its entirety with costs. Analysis And Determination 43.Having carefully considered the Amended Petition, the rival affidavits, the Grounds of Opposition, the Preliminary Objection, and the written submissions by all parties, together with the authorities cited and the constitutional and statutory framework governing the dispute, the Court is of the view that the following issues arise for determinationi.Whether the Preliminary Objection is merited including questions of locus standi and jurisdictionii.Whether the doctrine of separation of powers, constitutional avoidance, and exhaustion bar the Court from entertaining the Petitioniii.Whether the impugned provisions of the Supreme Court Rules, 2020 are inconsistent with the Constitution, including computation of time and the interpretation of Article 163(7).iv.Whether the Petitioners have demonstrated a violation of their constitutional rights under Articles 25(c), 47, 48, 50(1), 159, and 163 and finally.v.What reliefs, if any, are appropriate in the circumstances of this case, including the issue of costs. Issue i: Whether the Preliminary Objection is merited including questions of locus standi and jurisdiction 44.The 5th Respondent raises a Preliminary Objection challenging, inter alia, the locus standi of the 1st Petitioner and the competence of the Court to entertain the Petition in light of the reliefs sought. The foundational principle governing Preliminary Objections is well settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where it was held that such an objection must raise a pure point of law, premised on undisputed facts, and capable of disposing of the suit at once. 45.In substance, the objection is anchored on two limbs: first, that the 1st Petitioner, being a Senator and State Officer, ought to have pursued legislative avenues under Article 109(5) of the Constitution rather than invoke constitutional litigation and secondly, that the reliefs sought impermissibly invite the Court to intrude into the legislative domain, thereby offending the doctrine of separation of powers. 46.On the question of locus standi, the Court observes that the Constitution of Kenya, 2010 deliberately adopted a liberal and facilitative approach to standing in constitutional litigation. Articles 22 and 258 expressly expand access to the Court by permitting “any person” acting in public interest to institute proceedings for enforcement of the Bill of Rights and the Constitution. The Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemu [2014] eKLR underscored that standing in constitutional matters is intentionally broad so as not to impede the enforcement culture envisaged under the Constitution. Likewise, in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR, the Court reaffirmed that constitutional interpretation must favour access to justice rather than technical exclusion. 47.Accordingly, the mere fact that the 1st Petitioner is a Senator or State Officer does not, without more, derogate from his constitutional standing. The Constitution does not impose a disability on State Officers from approaching the Court in the public interest. To the contrary, Article 3(1) enjoins every person to respect, uphold and defend the Constitution. The objection on locus standi therefore fails to meet the threshold of a dispositive pure point of law as contemplated in Mukisa Biscuit (supra). 48.However, the Court must distinguish standing from institutional competence and jurisdictional propriety, which constitute separate but related inquiries. Jurisdiction is everything; without it, a court must down its tools as was emphatically stated in the oft cited Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1. 49.The Respondents correctly submit that under Article 165(3), the High Court’s jurisdiction, though broad in constitutional interpretation, does not extend to directing Parliament or constitutionally established bodies on how to exercise legislative power. The doctrine of separation of powers, as articulated in Mumo Matemu supra and Peter Ng’ang’a Muiruri v Credit Bank Ltd [2008] eKLR, restrains courts from assuming a legislative role or prescribing the content of legislation. 50.To the extent that the Petition seeks orders compelling amendments to the Supreme Court Act and the Supreme Court Rules, such relief ventures into the terrain of legislative prescription. Courts may interpret, invalidate, or declare inconsistency with the Constitution, but they do not supervise or direct the legislative process in terms of specific amendments. 51.It follows therefore that while the Petition is properly before Court for purposes of constitutional interpretation, it is not properly framed to the extent that it seeks structural and mandatory legislative directions. That aspect of the claim is legally untenable. 52.The Preliminary Objection therefore succeeds only to the limited extent that this Court cannot grant relief that would amount to directing Parliament or constitutionally mandated rule-making bodies to enact specific amendments. It is otherwise dismissed. Issue ii. Whether the doctrines of separation of powers, constitutional avoidance, and exhaustion bar the Court from entertaining the Petition 53.The Respondents invite the Court to down its tools on the basis of the doctrines of constitutional avoidance, exhaustion of alternative remedies, and separation of powers, contending that the Petition prematurely escalates what is essentially a procedural and administrative grievance into a constitutional controversy. These doctrines, though distinct in origin and application, share a common constitutional philosophy: that judicial power must be exercised with restraint, discipline, and respect for institutional comity, rather than as an instrument of governance substitution. 54.The doctrine of constitutional avoidance, as crystallised in Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR, is anchored on the principle that courts should not determine constitutional questions where a dispute can be resolved on a narrower statutory or procedural footing. Its purpose is not to oust jurisdiction, but to ensure that constitutional adjudication remains a matter of last resort, thereby preserving the Constitution’s normative authority and preventing its casual invocation in ordinary disputes. It is a doctrine of judicial economy and constitutional discipline. 55.Closely related is the doctrine of exhaustion, as articulated in Mutanga Tea & Coffee Company Ltd v Shikara Ltd [2015] eKLR, which requires litigants to first pursue available statutory or administrative mechanisms before invoking constitutional jurisdiction. The rationale is twofold: first, to respect legislatively created dispute-resolution frameworks and second, to prevent the constitutional court from becoming a forum of first instance for every grievance, thereby undermining specialised institutional processes. 56.When these principles are applied to the present dispute, however, their limiting effect is not as decisive as the Respondents suggest. The Petition does not merely challenge an administrative decision amenable to correction through internal mechanisms such as applications for extension of time or engagement with the Rules Committee. Rather, it calls into question the constitutional validity of subordinate legislation made under Article 163(8), implicating the structure of access to the Supreme Court itself. Such a challenge is inherently normative and interpretive, requiring a court of constitutional competence to pronounce itself on the alignment of the impugned Rules with Articles 47, 48, 50, 159 and 163 of the Constitution. 57.It would therefore be doctrinally inaccurate to characterise the dispute as one amenable to exhaustion. As was observed in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, the exhaustion doctrine yields where the alternative forum is either ineffective, inadequate, or incapable of addressing the constitutional question in issue. The present Petition raises precisely such a structural question: whether procedural rules governing access to the apex court comport with constitutional guarantees. No internal mechanism within the Supreme Court Rules or administrative framework can conclusively determine that question. 58.Similarly, while constitutional avoidance remains a relevant interpretive caution, it cannot be deployed to shield subordinate legislation from constitutional scrutiny. Once a prima facie allegation of constitutional invalidity is raised, the Court is not only entitled but constitutionally obliged under Article 165(3)(d) and Article 23(1) to interrogate the consistency of such instruments with the Constitution. To hold otherwise would immunise delegated legislation from judicial review, contrary to the supremacy clause under Article 2(4). 59.The doctrine that bears the greatest weight in the present inquiry is separation of powers. This principle, deeply embedded in Kenya’s constitutional architecture, ensures that each arm of government operates within its constitutionally assigned sphere without undue interference. As stated in Speaker of the Senate v Attorney General [2013] eKLR, the Constitution does not envisage institutional overlap that results in one arm of government directing the internal operations of another. 60.Applied to the present case, the doctrine operates as a limitation on remedial relief rather than on jurisdictional competence. The Court is not barred from interrogating the constitutionality of the impugned Rules, indeed, that function lies at the heart of its constitutional mandate. However, the Court must be cautious must be cautious not to assume the legislative function by prescribing the precise form and content of amendments, save for appropriate declaratory or supervisory relief consistent with Article 23. That responsibility remains constitutionally allocated to the relevant organs under Article 94 and Article 163(8). 61.In this regard, the distinction drawn in Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR is instructive. Courts may declare the law, including invalidating unconstitutional provisions, but they must refrain from substituting their own policy preferences for those of constitutionally mandated bodies. 62.Accordingly, while the doctrines invoked by the Respondents underscore important constitutional values of restraint, institutional respect, and procedural orderliness, they do not operate to oust the jurisdiction of this Court in the present matter. At most, they delimit the scope of relief that may properly issue upon determination of the Petition. 63.The Court therefore finds that the Petition is properly justiciable before it. However, the doctrines of separation of powers, constitutional avoidance, and exhaustion collectively caution that the Court’s role is confined to constitutional interpretation and review, and not the micromanagement or re-engineering of legislative or rule-making frameworks. Issue iii: Whether the impugned provisions of the Supreme Court Rules, 2020 are inconsistent with the Constitution, including computation of time and the interpretation of Article 163(7) 64.At the heart of the Petition lies a challenge to Rules 38(2)(b), 33(1), and 41(g), (h) and (i) of the Supreme Court Rules, 2020, anchored on the assertion that they unlawfully perpetuate limitation periods without accounting for administrative delays in the preparation and supply of certified proceedings, and further, that they impermissibly constrain access to the jurisdiction of the Supreme Court. Properly understood, however, the complaint does not disclose constitutional invalidity, it reflects, at best, dissatisfaction with procedural discipline in appellate litigation. 65.The constitutional standard for testing the validity of legislation and subsidiary legislation is firmly settled. In Olum v Attorney General [2002] EA 508, the Court affirmed that constitutionality is assessed both in terms of purpose and effect, and that a provision will only be struck down where it clearly offends the Constitution either in intent or consequence. This position is fortified by Institute of Social Accountability v National Assembly [2015] eKLR, where the Court underscored the presumption of constitutionality, placing a heavy burden on a challenger to demonstrate clear, cogent, and unambiguous inconsistency with the Constitution. Courts do not annul legislation lightly, they do so only where unconstitutionality is manifest and unavoidable. 66.Measured against this stringent threshold, the impugned Rules comfortably withstand constitutional scrutiny. They are not arbitrary innovations but are duly promulgated instruments under Article 163(8) of the Constitution and the Supreme Court Act, designed to give practical effect to the appellate architecture of the apex court. Their constitutional pedigree is therefore not in doubt. 67.It is now axiomatic from Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, that procedural rules are the handmaidens of justice and not its master, and are designed to advance, rather than impede, the administration of justice. The Supreme Court further emphasised that compliance with procedural timelines is an integral component of orderly adjudication, while preserving the Court’s discretion to enlarge time upon demonstration of sufficient cause. The rationale underpinning this approach is to secure the efficient and orderly administration of justice, discourage indolence, and ensure fairness between parties within a coherent and structured adjudicatory framework. 68.Against this doctrinal backdrop, the Petitioners’ grievance on computation of time that registry delay ought to suspend or exclude the running of time though superficially attractive, cannot be elevated into a constitutional violation. The legal system does not operate in a vacuum of indulgence, it operates within structured remedial architecture. Crucially, the Supreme Court Rules already provide a safety valve: the discretionary power to enlarge time upon sufficient cause being shown. This equitable jurisdiction is not illusory; it is a deliberate constitutional design that balances procedural certainty with individual fairness. 69.Indeed, the Supreme Court in Hassan Nyanje Charo v Khatib Mwashetani & 3 Others [2014] eKLR affirmed that timelines in appellate litigation are not decorative; they are constitutional imperatives that serve the broader public interest in finality and efficiency. The Court further recognised that where administrative delay occurs, the law does not shut its doors, it permits a litigant who has acted with diligence to seek appropriate relief. The constitutional system therefore accommodates hardship without dismantling the structure of procedural discipline. 70.On this footing, the Petitioners’ argument that time should only begin to run upon issuance of certified proceedings would introduce a regime of uncertainty incompatible with the constitutional values of predictability and orderly adjudication under Article 159(2)(b). It would effectively subordinate appellate timelines to administrative contingencies, thereby shifting the burden of institutional inefficiency onto the architecture of justice itself. That is not the constitutional design. 71.Equally unpersuasive is the contention that the Rules impermissibly restrict access to the Supreme Court under Article 163(7). That argument is founded on a fundamental misconstruction of the constitutional text. Article 163(7) does not create jurisdictional entry points, it entrenches the binding force of Supreme Court decisions across all courts in the Republic. Any perceived limitation in access therefore arises from Articles 163(3) and (4) read together with the Supreme Court Act, and not from Article 163(7) itself. 72.The distinction is critical. Jurisdiction is constitutional, procedure is operational. The two cannot be conflated. As the Court of Appeal observed in Mumo Matemu supra courts must guard against confusing dissatisfaction with procedural outcomes for constitutional infirmity. A rule is not unconstitutional merely because it is strict, it is unconstitutional only if it defeats a guaranteed right in substance, not in sentiment. 73.Properly analysed, therefore, the impugned Rules do not diminish access to justice; they structure it. They do not extinguish appellate rights, they discipline their exercise. They do not restrict the Supreme Court’s jurisdiction, they facilitate its orderly invocation within constitutionally defined limits. 74.In the result, the Court finds that no constitutional inconsistency has been demonstrated. The challenge is founded not on constitutional violation, but on an invitation to recalibrate procedural thresholds to suit individual hardship. That is not the province of constitutional adjudication. The impugned Rules remain firmly anchored within the constitutional framework and are, in fact, instrumental in giving it practical effect. 75.The Court has also considered the Petitioners’ contention that the Supreme Court Rules, 2020 fail to provide a mechanism for “any person” to invoke the jurisdiction of the Supreme Court under Article 163(7) of the Constitution. The Petitioners’ argument is premised on the assertion that Article 163(7) envisages a broad, open-ended entitlement enabling any person to access the Supreme Court. 76.With respect, that position is fundamentally flawed. Article 163(7) does not confer jurisdiction; it merely declares the binding nature of the Supreme Court’s decisions upon all courts and persons. It is a provision of constitutional effect, not one of jurisdictional entry or procedural access. Jurisdiction of the Supreme Court is exhaustively provided for under Article 163(3) and (4) of the Constitution, and operationalised through the Supreme Court Act, 2011 and Rules made thereunder pursuant to Article 163(8). 77.In that regard, the Supreme Court in Centre for Rights Education and Awareness & Others v John Harun Mwau & 6 Others [2012] eKLR cautioned against interpretive approaches that would expand appellate access beyond the clear constitutional limits, and cannot be expanded through interpretive reliance on provisions whose purpose is declaratory rather than jurisdiction-conferring. 78.Accordingly, Article 163(7) cannot be construed as creating an independent procedural gateway into the Supreme Court, nor can its absence as a procedural entry point under the Rules be characterised as a constitutional defect. The absence of such a mechanism does not disclose a constitutional lacuna; rather, it reflects the deliberate constitutional design governing the Supreme Court’s limited and carefully circumscribed jurisdiction. The declaration sought is therefore misconceived and cannot be sustained. Issue iv: Whether the Petitioners have demonstrated violation of constitutional rights 79.The Petitioners invoke a wide constellation of constitutional provisions, namely Articles 25(c), 47, 48, 50(1), 159, and 163 of the Constitution, alleging that the impugned Rules occasion violations of the rights to fair hearing, fair administrative action, access to justice, and the right to approach the Supreme Court. 80.The law, however, is settled that constitutional litigation is not conducted on the basis of broad or abstract grievances. The threshold for establishing a constitutional infringement is exacting. In Anarita Karimi Njeru v Republic [1979] KLR 154, as reaffirmed by the Supreme Court in Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR, a petitioner must plead with precision the specific constitutional provisions alleged to have been violated and the manner in which such violation is said to have occurred. This requirement is not a matter of procedural pedantry, it is a substantive safeguard against speculative constitutional claims. 81.However, modern constitutional jurisprudence has gone further. Precision in pleading, while necessary, is not sufficient. There exists a second and more decisive limb: the evidentiary burden of proving constitutional injury and causation. In Mumo Matemu supra Court of Appeal emphasised that allegations of constitutional violation must be supported by cogent evidence demonstrating not only the existence of a grievance, but a demonstrable nexus between the impugned act and the alleged infringement. Constitutional claims cannot be sustained on abstract apprehension, theoretical prejudice, or generalized dissatisfaction with statutory or procedural frameworks. 82.The burden is therefore twofold: the Petitioners must establish both the alleged infringement and a demonstrable causal link between the impugned provisions and the alleged violation, on the basis of credible and cogent evidence. 83.When the present Petition is measured against this standard, it becomes apparent that the decisive deficiency lies not merely in drafting precision, but in the absence of demonstrable constitutional injury and causal linkage. No evidence has been placed before the Court showing that any litigant has been denied access to the Supreme Court by operation of the impugned Rules. Equally, there is no material demonstrating that applications for extension of time under the existing procedural framework have been arbitrarily or capriciously refused in a manner that translates into constitutional prejudice. 84.That position is further reinforced by the absence of any demonstrated causal link between the impugned Rules and the alleged infringement of constitutional rights. The Petition therefore remains within the realm of systemic critique of procedural design, rather than a legally cognisable violation capable of attracting constitutional relief. 85.It is also important to restate that Article 48 guarantees access to justice, not immunity from procedural discipline. The constitutional promise is one of facilitation, not procedural anarchy. Likewise, Article 159(2)(d), while enjoining courts to eschew undue technicalities, does not abolish procedural rules or render timelines inconsequential. As was underscored in Raila Odinga & 5 Others v IEBC & 3 Others [2013] eKLR, procedural compliance remains a necessary incident of orderly adjudication, provided that such procedures do not in effect extinguish the substance of the right of access to justice. 86.In the premises, the Court is not persuaded that the Petitioners have discharged the constitutional burden of demonstrating any infringement of their rights. What emerges, at its highest, is a challenge to the wisdom, fairness, and operational efficiency of the impugned procedural framework, rather than a constitutionally cognisable violation. That distinction is not merely semantic; it is determinative. Constitutional adjudication is concerned with legality, not policy preference, and courts are not invited to substitute procedural design choices with their own conception of optimal regulation. Issue v: What reliefs, if any, are appropriate including costs 87.Flowing from the Court’s findings that no constitutional violation has been established and that the impugned provisions of the Supreme Court Rules, 2020 are not inconsistent with the Constitution, it necessarily follows that the declaratory, structural, and coercive reliefs sought by the Petitioners cannot issue. Remedies in constitutional litigation are not granted in the abstract; they are consequential and remedial in nature, and must be anchored on a proven infringement of a constitutional right. 88.The prayers seeking to compel amendment of the Supreme Court Rules and the Supreme Court Act are, in any event, constitutionally impermissible. They would amount to an intrusion into the domain of the Legislature and constitutionally mandated rule-making bodies, thereby offending the doctrine of separation of powers as articulated in Mumo Matemu supra and Kenya National Commission on Human Rights v Attorney General [2014] eKLR. The Court is vested with the authority to interpret the Constitution and review legality, not to assume the role of a “super-legislature” or to prescribe the content of legislative or regulatory instruments. 89.It is now well settled that while Article 23(3) of the Constitution empowers the Court to grant appropriate relief, such relief must be both legally justified and constitutionally anchored. As was emphasised in Hoffmann v South African Airways (CCT17/00), constitutional remedies must be responsive to an established infringement and tailored to vindicate rights in a manner that is both effective and proportionate. In the absence of a proven violation, the jurisdiction to grant constitutional remedies is not triggered. 90.On the question of costs, it is trite that costs in constitutional litigation are discretionary and are ultimately guided by the demands of justice and the broader public interest. While the general rule is that costs follow the event, that principle is not applied mechanistically in matters raising bona fide constitutional questions of public importance, where courts are often called upon to strike a balance between discouraging frivolous litigation and not unduly deterring public interest claims. 91.In the circumstances of this case, and notwithstanding the failure of the Petition, the Court is not persuaded that an award of costs against the Petitioners is warranted. Equally, there is no basis to penalise the Respondents. The proper and just order is therefore that each party shall bear its own costs. Conclusion 92.In the final analysis, the Court finds that although the Petition was properly before it in terms of standing and jurisdiction, it ultimately fails on merit. The Petitioners have not demonstrated, on a factual or evidentiary basis, any violation of constitutional rights arising from the impugned provisions of the Supreme Court Rules, 2020. What has been presented is, in substance, a policy-based critique of procedural design rather than a legally cognisable constitutional infringement. 93.The Court further finds that the impugned Rules are constitutionally grounded, being promulgated pursuant to Article 163(8) of the Constitution and the Supreme Court Act, and are intended to regulate the orderly, efficient, and expeditious exercise of jurisdiction by the Supreme Court. No inconsistency with the Constitution has been established. 94.Ultimately, constitutional jurisdiction is engaged by demonstrable violation of the Constitution, not dissatisfaction with procedural design. The doctrines of constitutional supremacy and judicial review cannot be invoked to displace the constitutional allocation of legislative and rule-making authority. 95.Accordingly, and for the reasons set out in this judgment, the Court makes the following orders:A.The Preliminary Objection succeeds only to the limited extent that it challenges the Court’s jurisdiction to grant orders directing amendment of legislation and subsidiary legislation, it is otherwise dismissed.B.The Amended Petition is hereby dismissed in its entirety for want of merit.C.It is declared that the impugned provisions of the Supreme Court Rules, 2020 have not been shown to be inconsistent with the Constitution.D.The prayers seeking compulsory amendment of the Supreme Court Rules and/or the Supreme Court Act are declined as they offend the doctrine of separation of powers.E.Each party shall bear its own costs.Orders accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026.………………………………….BAHATI MWAMUYE MBSJUDGE.In the presence of:1st Petitioner - Ms. Echesa w/b2nd Petitioner – AbsentCounsel for the 1st, 2nd and 3rd Respondents – AbsentCounsel for the 4th Respondent - AbsentCounsel for the 5th Respondent – Ms. Akama