For Kenyan practitioners, the judgment is highly relevant because it addresses a fundamental constitutional question, which three Superior Court decisions in Famy Care Limited v Public Procurement Administrative Review Board & others (Petition No. 43 of 2012), Nairobi Law Monthly Company Ltd v Kenya Electricity Generating Company & others (Petition 278 of 2011), and Kenya Legal and Ethical Issues Network (KELIN) v Cabinet Secretary, Ministry of Health & AG (Petition E063 of 2021), have examined from only one direction. All three Kenyan cases ask the question: whether a corporate body may obtain information from the State. Up until this point, no Kenyan court has confronted the mirror-image question: whether a corporate body enjoys a constitutional right to resist State compulsion to disclose its own private commercial information, and whether a regulation that makes the impossible mandatory is unconstitutional on its face rather than merely judicially reviewable.

The BSI Belize judgement resoundingly answers both, and it does so by deploying analytical tools which need not be transplanted into Kenya, as they are already available, though unutilised. While not binding on Kenyan courts, the BSI Belize judgement offers a greater comparative value, especially considering that Belize and Kenya enjoy a shared heritage as former British colonies, which inherited and still retain English common law roots and a shared parliamentary framework.

The Kenyan Trajectory: From Hard Exclusion to Statutory Codification

The Kenyan journey commences with two restrictive judgements. In Famy Care, Majanja J was confronted with the Constitution’s Article 35(1) question by an Indian company seeking tender evaluation records from KEMSA. The respondents raised a preliminary objection, arguing that only “citizens” have the right of access to information, and a company is not a citizen, strictly speaking. The court’s ruling reiterated that Article 35(1) is textually limited to citizens, unlike other rights framed around “every person” or “all persons.” [18]. Yes, Article 260 defines “person” to include companies, preserving Bill of Rights rights for juristic persons “to the extent that the right or fundamental freedom itself permits” [21]. Nevertheless, the court ruled that under the Constitution’s Chapter Three, citizenship is founded on birth, descent, registration, and marriage, attributes which are structurally incompatible with corporate existence. A juridical person is neither born nor married. Bearing this in mind, the court was unequivocal that Article 35(1) was unavailable to Famy Care.

The court sitting in the Nairobi Law Monthly v KenGen case arrived at the same conclusion based on facts which were materially identical to Famy Care. While citing Famy Care with approval, Mumbi Ngugi J noted that “the term “citizen” denotes a natural person who is a Kenyan citizen; a body corporate cannot claim corporate Kenyan citizenship irrespective of its ownership structure” [81–82]. This was a dangerously vague finding as the CIPIT Strathmore blog observed contemporaneously, for the reason that it threatened downstream consequences well beyond information rights. For instance, if corporate “personhood” is confined to human-attribute-specific rights, it potentially undermines corporate authorship under the Copyright Act. More specifically, the Copyright Act uses the words “author” and “person” in sections 2(1) and 23(2), which provisions heavily depend on precisely the kind of purposive extension that the citizenship cases were closing off. On the whole, the concern by CIPIT was more structural: courts were using a narrowed interpretative prism for the distinction between citizen and person, which portended broader suppressive implications for the participation of corporate bodies in rights-based frameworks.

Both cases were determined prior to the enactment of the Access to Information Act, No. 31 of 2016 (hereafter “ATI Act”, for short). Section 2 of the ATI Act defines citizen as “any individual who has Kenyan Citizenship, and any private entity that is controlled by one or more Kenyan citizens.” In effect, the Act addressed the gap inherent in the constitution by extrapolating the information access right to juristic persons, which are citizen-controlled, as a legislative redefinition. The concern was whether courts would embrace it.

They did. In KELIN, the petitioner, a Kenyan-registered NGO, sought clarity on whether the NGO Act’s duly registered entity could seek relief for rights violations under the Constitution’s Article 35. Before Mugambi J, the 1^st respondent urged that the pre-ATI Act stance as per Nairobi Law Monthly v KenGen justifiably foreclosed corporate petitioners. The court rejected this invitation, ruling that the ATI Act had instead “enlarged the scope of persons that can seek information by expanding the category to include juristic persons under Section 2” [66-67]. Therefore, the petitioner, KELIN, being a Kenyan citizen-controlled corporate entity, qualified, hence dismissing the “busybody” claim by the respondent [65]. In closing, the court ruled that the petition “raised matters of great public interest, concerning the alleged misappropriation of GAVI donor funds amounting to USD 1.6 million that the Ministry of Health had agreed to reimburse using public money, and any person could bring such a petition under Articles 22 and 258 of the Constitution” [9-11].

The second notable doctrinal contribution of the KELIN case was that it tied Article 35 to the Constitution’s Article 201. Mugambi J ruled that as the matter related to information sought concerning public funds and their usage, the principles of public finance under Article 201(a) (openness and accountability) and 201(d) (prudent and responsible use of public money) operated as an independent constitutional multiplier on the disclosure obligation [105–109]. Failure to avail information regarding the funds’ usage or actions against those responsible “breached not only Article 35 but also Article 201(a)” [107-109]. The petitioner’s prayers were granted.

The Doctrinal Gap in the Kenyan Cases, and What BSI Belize Fills

Collectively, Famy Care, Nairobi Law Monthly, and KELIN establish three things and leave three things open. What they establish are these: a foreign-incorporated entity does not enjoy the Article 35 right [Famy Care [26]]; a juristic entity which is controlled by citizens enjoys Article 35 protection through the expanded scope of the ATI Act [KELIN [67]]; and in instances where information sought concerns State organ held public funds or their usage, Article 201 self-executes an independent constitutional duty of disclosure which further reinforces Article 35 [KELIN [109]]. Here is what the cases, as read together, do not tackle: whether a company enjoys a positive constitutional right to resist compelled disclosure of its own private commercial information; whether Article 201 transcends the context of public funds into other arrangements which are purely private commercial; and, lastly, whether a regulatory instrument imposing mandatory impossible obligations is unconstitutional on its face or merely a subject of judicial review. On all three, BSI Belize speaks directly.

First, regarding the privacy of corporate information, Goonetilleke J ruled that the terminology “person” as found in the privacy provisions of Belize’s Constitution “would include a legal person or a legal entity” [70]. The court adopted a privacy taxonomy made up of three limbs, as formulated in KS Puttaswamy v Union of India (Writ Petition No. 494 of 2012) via Julian Robinson v AG of Jamaica [2019] JMFC Full 04: (a) bodily integrity, (b) informational privacy, and (c) choice privacy [75-76]. Crucially, the court disaggregated the limbs, arguing that the first limb was unavailable for corporate bodies as the attributes such as bodily integrity and human dignity are preserved for natural persons only [78-80]. However, it was “farcical” to arrive at the conclusion that the lack of human dignity automatically extinguishes companies’ informational privacy rights. The court ruled that indeed “privacy is at the core of the operations of commercial entities” [79]. For this reason, confidentiality of commercial contracts is vital because of the potential competition detriment that arises from disclosure. Therefore, the court concluded that “Corporates do have a right to informational privacy no less than the individual” [80].

Juxtaposed, this trajectory of reasoning is available under Article 31 of the Constitution of Kenya, which protects “every person” and not just “every citizen.” Examined together with the definition of “person” under Article 260, which arguably includes companies, and the position under Article 20(2) that every person shall enjoy rights “to the greatest extent consistent with the nature of the right or fundamental freedom,” the three-limb approach in BSI Belize offers an immediate answer to the question Famy Care [21] grappled with but left unanswered. The bottom line is: Informational privacy in commercial contracts is simply compatible with corporate existence, specifically because it requires no human attribute to explain it. The Puttaswamy / Julian Robinson taxonomy cited with approval in BSI Belize is already cited in Kenyan jurisprudence, providing the analytical toolkit to directly say so.

In relation to the scope of Article 201, the ruling in KELIN explained an important limit, which is supported from the other direction by BSI Belize. The justification of the government for compelling private contracts’ disclosure by BSI included Fairtrade premium distribution transparency and accountability between commercial parties in the sugar industry [82]. The court held that “disturbance to the sugar industry… or anxiety of a section of the farmers and their associations” does not fall within the constitutionally permissible grounds for limiting privacy [82-83]. This effectively means that the list of permissible limitations under the Belize Constitution is closed. Contrarily, Article 24 of Kenya’s Constitution is wide open, stating that any limitation must be “reasonable and justifiable in an open and democratic society.” In KELIN, the court found that the disclosure runs through Article 201 specifically, and Article 201 relates to public funds and not private commercial arrangements. In an instance where a State organ compels a private firm’s contractual disclosure regarding its engagement with private international buyers, neither Article 201 nor the public interest values in Article 10 offer sufficient justification for Article 24 by themselves. These aspects considerably heighten the burden of limitation, and neither “industry regulation” nor “transparency” provides sufficient answers.

Relating to the impossibility of regulation, the analysis of Regulation 16 in BSI Belize offers the most benefits to Kenyan regulatory litigators. At its core, the regulation was impugned for requiring BSI to “collect all proceeds, premiums or other benefits” from certified sugar buyers and distribute them to producers, with non-compliance attracting automatic revocation of the licence as the sanction [94–95]. In BSI Belize, the payer of the Fairtrade premium was Tate & Lyle Sugars, a foreign company that had expressly, in writing, refused to adopt the conveyor model and which was beyond Belizean jurisdiction [95], [106]. The court ruled that the word “shall” as used in Regulation 16(1) was imperative under the Interpretation Act of Belize [108]. Consequently, the court declined to read “shall” as “shall where possible”, arguing that courts are not at liberty to insert language that is not there [119]. The constitutional violation was therefore imminent: a regulation creating an obligation that is mandatory, whose performance is premised on a third party that is extraterritorial and a severe sanction that was automatic. In resting, the court characterized the breach as an infringement of the right to protection of the law as the regulation was irrational and unreasonable [116] and a violation of the right to work through its disproportionate measures [118]. The proportionality test failed primarily because the automatic sanction applied “irrespective of whether the licensee could or could not collect the benefits or premiums” [120].

Until now, no Kenyan court has found a regulation unconstitutional for impossible mandatory obligations. Traditionally, the Wednesbury unreasonableness judicial review approach has been deployed, but it inconclusively remedies violations of substantive rights. For Kenyan advocates, the constitutional argument runs through Article 40, which deals with the protection of the right to engage in economic activity, Article 41 on fair labour practices, and Article 47 on fair administrative action, as read with the proportionality standard contained in Article 24. Here is the argument: a licensing or regulatory instrument that imposes a mandatory obligation whose performance depends on a third party or extraterritorial actor through compulsion by the State, supported by automatic severe sanctions such as forfeiture, licence revocation, or deregistration, is not merely a subject of judicial review. Instead, such a regulation is disproportionate at face value, as no extent of compliance by the licensee can avert the sanctions. The argument is directly applicable in Kenya’s agricultural export, capital markets, pharmaceutical and energy sectors, all of which impose compliance obligations with foreign certification bodies, international standard-setters, or cross-border payment systems.

Conclusion

The Kenyan path illustrates an arc from a regime that is more restrictive to a statutory codification of information rights, although this trajectory is faulty for leaving the constitutional weaving of corporate rights incomplete on one critical angle: the protection of information held by corporate entities from disclosure compulsion by the State. KELIN closes that doctrinal gap partly, specifically by confirming that corporate entities controlled by Kenyan citizens can access public information and that Article 201 multiplies the disclosure duty where public funds are in play. However, it fails to vest corporate privacy as a positive right, insufficiently highlights the limitation analysis applicable to compelled commercial disclosure in purely private contexts, or the constitutionality of impossible mandatory regulatory obligations.

BSI Belize speaks directly to all three. It embraces the Puttaswamy three-limb framework for corporate informational privacy, which is directly relevant and available under Article 31, Article 260, and Article 20(2) of the Constitution of Kenya. Its analysis asks a fundamental question: whether the justification for compulsion by the State amounts to a constitutional reason that is cognizable for limiting the right, before proceeding to proportionality. This is, in effect, an argument that Kenyan advocates can and should mount under Article 24. BSI Belize also elevates the impossibility of the regulation from a ground for judicial review to a substantive constitutional basis, which is immediately applicable as a doctrinal step for advocates litigating licensing and regulatory challenges. This analysis ends here: Kenyan courts and practitioners have the doctrinal materials; what has been missing is the desire to deploy them in protecting trade information held by corporate clients.

©Gody Mwango (Advocate). The author practises at the intersection of constitutional, human rights & judicial review law.

In its decision in Law Society of Kenya v Centre for Human Rights and Democracy & 12 others [2014] KESC 29 (KLR) some eleven years ago, the same court did exactly what it now claims cannot be done. LSK was enjoined as an interested party before the High Court and did not participate in the Court of Appeal. At the Supreme Court, none of the principal parties appealed, but the LSK did. The court permitted its appeal to proceed. Contrastingly, in Mbaazi Avenue, the rule is now restated with stark candour that the appeal should never have left the registry in the very first place- dead on arrival. At face value, the two decisions are immediately irreconcilable. The experienced 5-judge apex bench was directly invited to ventilate on this apparent contradiction by the applicants in the ruling’s paragraph 12. Interestingly, the invitation was met with complete silence from the court.

Judicial silence on a contradictory authority that is directly cited by an applicant cannot be interpreted as neutrality. Coming from a highly experienced bench, it amounts to a choice that carries consequences. It portends deeper ramifications, including for advocates who analyse Mbaazi Avenue, who must deal with two decisions of the apex court which are irreconcilable on the same point. The silence means that the court missed a golden chance to guide on which position prevails, why, or under what specific conditions. It neither overruled, distinguished nor acknowledged the tension from its earlier stance in LSK v Centre for Human Rights. All the court did was reaffirm Macharia & another v DPP & 11 others [2022] KESC 61 and move on. An apex court sitting as the bench of final jurisdiction that refuses to confront a direct contradiction in its precedents does a disservice to the certainty of the precedent doctrine as understood in law.

The distinction is not hard to deal with. The LSK is born of a statute, which directly mandates it to uphold the constitution and the rule of law. At its best, examined from its statutory constitution, it exists to litigate questions relating to the interest of the public, which do not arise only based on its presence in courts below. On the contrary, a residents’ association/community, as was the case in Mbaazi Avenue, lacks such a mandate. Implicitly, its interest is more direct and factual as it is directly affected by the case’s outcome. That is a clear distinction which is not difficult to articulate. One has an affected party interest, and the other a public interest standing. As such, the latter may survive the label as an interested party as its locus is not derived from the procedure but a substantive law creature. The former cannot. The bench sitting in Mbaazi Avenue had ample experience, opportunity, space, and disposition to say this explicitly, but it refused to utilise it.

The ruling presents a deeper structural problem. Violations of the constitution, which touch on public participation failure, degradation of the environment, and zoning abuses, directly impact the communities, which are unlikely to possess the necessary resources to institute suits as principal parties. Such communities seek to be enjoined as interested parties, as that’s all they can afford, either financially or procedurally due to potential exposure. An absolute rule, as laid down in Mbaazi Avenue, without clarity on any exceptions, as per the LSK case, means that the vital constitutional protections under Articles 10, 42, 69, and 70 are rendered inaccessible to the very groups they were tailored to safeguard. This consequence deserved more robust and open engagement from the court than merely restating the rule without accounting for its exception.

The pragmatic position for advocates is direct and immediate. The ruling in paragraph 18(v) of Mbaazi Avenue is the absolute/governing rule until such a time that the court will revisit the issue of whether the stake of a party, be it intergenerational, environmental, or communal, could be a justifiable or sufficient basis for an independent right of appeal for interested parties. Therefore, without any exception, your client must appear as a principal party right from the trial court’s first filing. However, if your client enjoys a public interest mandate under a statute, pivot the LSK case argument directly and invite the bench to once and for all ventilate on that which it has refused to. The court in Mbaazi Avenue was calculative, deliberate, experienced, and unanimous, and its silence on the LSK case was a deferral, not an oversight. At a future point, the deferral must stop because an absolute rule with an exception that is not acknowledged isn’t that absolute. Is it? It becomes an ambush.

©Gody Mwango (Advocate). The author practises at the intersection of constitutional, human rights & judicial review law.

The summarised factual basis is that both courts below dismissed the petition. Years later, the association sought to appeal to the court, and the question of standing unraveled. Before the apex court, both applicants, the Association and Millennium Gardens Management Ltd, acted as co-petitioners, a potentially problematic and unravelling reclassification. Consequently, among others, the issue before the court was whether an interested party could institute an appeal where none of the principal parties had done so.

The ruling noted that the court had the requisite jurisdiction under Article 163(4)(a), specifically because the issues at the lower courts “turned on the interpretation and application of the Constitution” [18]. Therefore, the appeal satisfied the constitutional trajectory test. The issue of standing immediately unraveled, with the court holding that even though the standing of the management company was unchallenged, the capacity of the association to appeal was not.

More specifically, while citing with approval the ruling in Macharia & another v DPP & 11 others [2022] KESC 61 (KLR), the court was unequivocal that: “An interested party cannot suddenly and on appeal transform itself into a substantive party and take over such a party’s case. In the event, we agree with the 1^st respondent that an appeal by an interested party cannot be sustained” [18]. Crucially, the court relied on its inherent jurisdiction to cure the error apparent on the face of the record by properly reclassifying the association as an interested party. As such, the court permitted the appeal by Millennium Gardens Management Ltd, which was a principal party in the suit in the courts below, to proceed. More striking is the court’s ruling that the correction was possible only because a legitimate principal party remained in the proceedings. Without the management company, there would have been no appeal to save [18].

The ruling is jurisprudentially sound and aligns with other earlier findings: the Macharia case, Muruatetu & another v Republic [2016] KESC 12, and the Senate & 3 others v Speaker of the National Assembly [2025] KESC 11 all reinforce it across civil and constitutional contexts [15]. Curiously, though, the applicant association’s case sought to invoke the apex court’s indulgence based on its earlier contradictory ruling in Law Society of Kenya v Centre for Human Rights and Democracy [2014] KESC 29. LSK, which was previously an interested party in the courts below, was successful in appealing to the court. This position was met with judicial silence by the court, which is telling, as it is left for analysts to infer that perhaps, maybe perhaps, the public interest standing of the LSK is statutorily anchored, a position the association did not enjoy. For now, the distinction remains unclear and will, in time, require being confronted more directly.

The ruling depicts an underlying structural problem. For instance, many community groups that are adversely impacted by a lack of public participation, environmental harm, or zoning abuses often seek enjoinment in suit as interested parties. In this capacity, they build a sound constitutional record, only to discover that their procedural label as interested parties is a judicial ceiling to their appeal right. Indeed, the court found that in their label as an interested party, the Association had not demonstrated, “with sufficient precision,” how their environmental rights were being infringed [18].

The lessons for advocates from this ruling are direct and immediate. Any party with a genuine grievance, be it public participation, environment, or land use, must bring a suit as a principal party right from the trial court. The choice to take part as an interested party in litigation, either to avert procedural exposure or costs, may (permanently) foreclose the right to appeal in the future. The ruling in Mbaazi Avenue is the absolute until such a time that the court will revisit the issue of whether the stake of a party, be it intergenerational, environmental, or communal, could be a justifiable or sufficient basis for an independent right of appeal for interested parties. Until that moment comes, advocates must select their procedural label wisely because it may turn out to be the most consequential choice in the course of the litigation.

©Gody Mwango (Advocate). The author practises at the intersection of constitutional, human rights & judicial review law.

The facts were that when the applicant, Mariko Mustafa Wasike, went to answer a Chief’s summons, he left with injuries. The man who summoned him, Joseph Kaita, the area Chief, had physically assaulted him at the office. Wasike reported it, got treated at the hospital, and tried to do everything right. Then the system closed around him: The hospital where he was treated refused to sign his P3 form, a necessary document to initiate a criminal charge for assault. Wasike claimed that the Chief’s administrative reach influenced these actions. He notified the ODPP, but they too did nothing. Therefore, a government official allegedly used state machinery to render himself prosecution-proof. So Wasike went to the High Court and asked to prosecute Kaita himself.

In a brief ruling, the court not only said yes. It affirmed that an applicant could approach the court “by whatever means”. In addressing a dangerously vague law area that had been neglected for decades, the court noted that under Kenyan law, although the right to private prosecution exists in the Criminal Procedure Code, the route to exercising it was never codified. The only procedural guidance came from Kimani v Kahara [1983] eKLR, which suggested leave should be sought at the Magistrate’s Court once the accused appeared for plea. That placed the cart before the horse: how do you summon an accused to plead before a court has authorised your prosecution? The framework was circular, and for ordinary citizens facing powerful respondents, practically unusable.

For these reasons, the court was unequivocal that Kimani was decided under the 1969 Constitution. Contrarily, the 2010 Constitution abhorred procedural technicalities for substantive justice. Under Article 165(3), the High Court is vested with unlimited original criminal jurisdiction. The court reasoned that it was empowered to handle anything within the Magistrate’s mandate & could certainly grant leave for matters destined for that court. The Magistrate’s Court, as the court put it, “exists to assist the High Court discharge its mandate” [9].

For all its practical utility, the ruling falls short of resolving all questions. For instance, the ruling failed to clarify the test it applied in granting leave, be it draft charge sheet content assessment, standing, or sufficiency of evidence, given that the application was unopposed. Hopefully, a future contested case will allow the court to engage with these details robustly. Besides, the ruling does not clarify whether the Magistrate’s courts retain a concurrent leave-granting jurisdiction or whether the ruling transfers that function upward entirely. These are not trivial doctrinal gaps. On the whole, however, the ruling’s core holds that where prosecution is obstructed through state capture, private prosecution is not merely a legal procedure but an essential structural safeguard. Wasike v Kaita settles it that the High Court is the proper venue to trigger leave for private prosecution and that procedural technicality will not be used against an applicant- the door is wide open. For a man who visited a government office to answer a summons and was assaulted, this decision is not nothing.

©Gody Mwango (Advocate). The author practises at the intersection of constitutional and human rights law.

The facts of the case are straight-forward. HSO, a seventeen year old teenager, was arrested alongside his sixteen-year-old partner after a missing person report and charged with defilement under Section 8 of the Act. In another case, AMO faced similar charges after a consensual relationship with TA, who was then seventeen years old, led to pregnancy and cohabitation. TA herself was never charged, but was at some point interrogated without a lawyer and forced to testify against her own partner. In both cases, charges were eventually dropped once prosecutors confirmed the accused were minors. The petitioners sued, arguing that withdrawal of charges did not cure the constitutional harm already done [19–21]. On the contrary, the Respondents urged that the matter was technically res judicata, effectively citing an earlier decision in CKW v Attorney General, Eldoret Petition 6 of 2023 to the effect that it conclusively settled the matter.

The petition raised one narrower issue: whether the Act’s application without differentiation between exploitative adult conduct and consensual peer relationships passed a proportionality analysis under Article 24 [19–123].

I surmise that the distinction highlighted in this core issue is sound. Less convincing is what the court did with it. In the petition, the learned Judge ruled that there were infringements of Articles 27, 28, 31, 43 and 53, which relate to dignity, equality, privacy, health and the best interests of the child, respectively. In effect, the court’s finding flowed from what the judge described as a regime that operates “without an internal mechanism to distinguish between conduct that causes harm and conduct that is developmentally consensual and non-exploitative” [136]. Yes, to my mind, the proportionality reasoning under Article 24 is carefully constructed, and the reliance on Teddy Bear Clinic for Abused Children v Minister of Justice (CCT 12/13) [2013] ZACC 35 is appropriate given how closely Kenya’s constitutional framework mirrors South Africa’s on these issues [138]. As a comparative rights jurisprudence, I do not quarrel with the destination. It is the route that troubles me, as I will analyse in the subsequent paragraphs.

The judgment instructed the DPP to immediately gazette its existing internal guidelines, the police to align their protocols, and the health and education ministries to develop adolescent-friendly service frameworks [184(D)–(F)]. Understandably, these are interpreted as structural orders towards the executive, effectively serving as the exercise of the court’s judicial authority in the most assertive sense. However, the court did not stop there. The learned Judge went further and declared Sections 8, 9, and 11 of the Act unconstitutional insofar as they apply to consensual peer conduct. All this was done without the intervention of the Parliament, for example, in a response through legislative enactment. On this basis, therefore, the argument by the Respondents that any perceived deficiencies or shortcomings in the legislative provisions fell squarely within the purview of Parliament and needed no judicial intervention received lesser engagement from the court than it deserved [57].

My main concern with the judgement, however, is contained in paragraph 180. Up until this point in the decision, the court’s entire premise is woven around the aspect of the unconstitutionality of criminalising conduct between adolescents of “close age proximity”. Curiously, the court then declined to clarify the exact meaning or remit of the phrase “close age proximity”, in effect leaving this definition at the mercy of the DPP, police and other agencies to work out among themselves. That is an important gap in the court’s interpretation of the law, which could build or break the substratum or “soundness” of the entire judgment.

Crucially, a declaration of unconstitutionality of statutory provisions that hinges on a terminology the court failed to define does not provide sufficient and reliable guidance to the police officer on the ground, the prosecutor reviewing a file, or the magistrate taking a plea. So, essentially, such a declaration yields the very inconsistent and discretion-heavy type of enforcement which the court sought to prevent in the very first place. The court has a constitutional authority to find these provisions overbroad. But that is not all – it is arguable that the court also had an obligation to clearly delineate the boundaries of the exception it purported to carve out.

The court emphasized that the DPP already had an unpublished internal policy against prosecuting minors [150]. This finding is candidly striking and damning in these circumstances. For instance, had the said policy been applied consistently, it would have averted both sets of proceedings the petitioners were subjected to. To this extent, the court’s finding was sound in ordering that the policy be formalized. But with the same token of precision, the finding highlights a relatively uncomfortable question which the judgment fails to address: if the substratum of the entire case was an enforcement problem as opposed to statutory design, how would the court justify an unconstitutionality declaration against the provision of the primary Act itself? Curious, right?

In conclusion, none of this is to claim that the petitioners deserved the wrong that was visited upon them; they did not. The harm suffered by the petitioners was real, and there were constitutionally disproportionate conducts by the prosecution which justified appropriate structural orders as directed by the court. But there exists a distinction between a court rewriting a statute, say due to the failure by the Parliament, and a court sitting to correct a failure in enforcement of a policy. This judgment by Mwamuye J. does important work in developing Kenya’s sexual offence jurisprudence to align it with international best standards. Whether it stays within proper judicial limits is a question worth sitting with.

©Gody Mwango (Advocate). The author practises at the intersection of constitutional and human rights law.

Mwango Law Advocates | Mombasa, Kenya

Kenyan executives sign dangerous contracts every week. Government agencies make unlawful decisions daily. Most organisations only discover their legal exposure after they are already in court.

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Issue 002: Judicial Review: when you can challenge a government decision, and how.

Issue 003: Five commercial contract clauses that generate the most litigation in Kenya.

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