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Legal Services

The KNCHR’s Legal Services are currently provided to the public through the receipt and processing of complaints during which complainants are offered appropriate legal advice. Internally legal services are provided by among others the provision of general legal counsel to the KNCHR, drafting and witnessing the execution of contracts and handling court matters on behalf of the Commission to ensure it meets its objectives as an efficient and effective National Human Rights Institution.

The KNCHR conducts litigation in appropriate cases involving the interpretation of the Bill of Rights. The Commission takes up cases that are either of broad public interest or that would have a significant impact on the legal discourse of human rights in Kenya. The case should also have a strategic goal such as setting up legal precedents, highlight a discriminatory position in the law or one that would lend weight to legal reforms. In this regard, the Commission participates in Public Interest Litigation either as amicus curiae (friend of court) or as a Petitioner under article 22 of the Constitution. The Commission also participates in on-going litigation initiated by other parties as an Interested Party.

Highlights of successes in litigation

The KNCHR was a co-petitioner in this case that challenged the intended closure of Dadaab Refugee Camp, the forced repatriation of all its Somali dwellers and the disbandment of the Refugee Committee then established under the Refugee Act (2006). The Court declared the disbandment and the intended closure of the camp unconstitutional on among other grounds the violation of international law principles such as the principle of non-refoulement that forbids forceful repatriation of refugees or asylum seekers to a country in which they are liable to be subjected to persecution.

The KNCHR was the 3rd Petitioner in this case. The Petition sought a determination by the court whether (or not) Parliament failed to fulfil an obligation imposed on it by the Constitution namely the enactment of legislation giving effect to the two thirds gender rule within the required timeline (27th August 2015). The court found that the National Assembly and the Senate had failed in their joint and separate constitutional obligations to enact legislation necessary to ensure that not more than two thirds of the members of the National Assembly and the Senate shall be of the same gender. Parliament and the Attorney General were ordered to take steps to ensure that the required legislation is enacted within a period of sixty (60) days from the date of the order and to report the progress to the Chief Justice and that if they fail to do so, the Petitioners or any other person shall be at liberty to petition the Chief Justice to advise the President to dissolve Parliament. The state appealed and the matter is currently at the Court of Appeal awaiting hearing and determination.

The matter was filed by residents of Soweto East Zone “A” in Kibera who were concerned with the then intended allocation of houses under the Kenya Slum Upgrading Project. The Petitioners were apprehensive that the rightful beneficiaries would miss out on allocation of the housing units. The Court ordered that “in order to ensure transparency of the project, I direct that the process of the allocation of the units, the subject of these proceedings, be overseen by the representatives of the Kenya National Commission on Human Rights in order to ensure that only those who are genuinely entitled to the benefit of the project reap therefrom.” The Legal Services Department provided technical legal support to the Commission by drafting an interpretation of the Judgment of the Court in the above cited Petition, provided guidance in the development of the Post-Judgment implementation matrix from time to time and developed legal documents for the balloting exercise besides guiding stakeholder planning meetings. This ensured transparency in the allocation process.

The Petition sought to compel the Police to among others conduct a public inquiry on all reported cases of extra judicial killings by the police and also provide compensation to one of the families of a victim of extra judicial killings. Mr. Ibrahim Ongego, 46, and son Joseph Ongego, 14, were gunned down by officers Musili Kithome and Simon Kikwai, who were attached to Muthangari Police Station. Justice Isaac Lenaola (then of the High Court) found in his judgment that police had used excessive and unreasonable force at the time of the shooting on the night of 23rd November, 2011 at Kawangware in Nairobi The Court ordered the National Police Service Commission (NPSC) and the Attorney General to conduct a formal inquiry into the role of the officers implicated in the “apparent extra-judicial killings and summary executions”. The Judge ruled that the murder of Mr. Ongego and his son was a violation of their right to life. He found the victims did not pose a threat to anyone and the killing amounted to cruel, inhuman and degrading treatment. The government was ordered to pay Sh4 million as compensation to the deceased persons’ family.

The Commission filed this appeal on 24th June 2015. It involves a minor who was committed to death row at Kamiti Maximum Prison for a charge of Robbery with Violence on his own plea of guilty. The Commission argued that the minor’s right to fair hearing as envisaged under Article 50(1) (h) was violated as the State did not assign an advocate to represent him during trial. Second, that he was serving his sentence in a maximum prison for adults instead of being detained in a borstal institution. Further, that the trial Magistrate in the lower court contravened section 190 of the Children Act by handing a death sentence to a minor. The Commission successfully urged the court to acquit the appellant on these grounds. The court allowed the Appeal and acquitted the Minor on 23rd November 2015.

This was a case in which an anonymous single mother (L.N.W, sued the Registrar of Births and Deaths petitioning the court to declare S.12 of the Registration of Births and Deaths Act unconstitutional for violating express provisions of the Constitution of Kenya and other laws. The section in contention stipulates as follows: - …”no person shall be entered in the register as the father of any child except either at the joint request of the father and mother or upon the production to the registrar of such evidence as he may require that the father and mother were married according to law, or in accordance with some recognized custom”. The Commission joined the Petition as amicus curiae and filed its submissions on the matter in 2015 after directions following an ambiguity involving a similar case in another court. Judgment was delivered on 26th of May 2016 and the court, in tandem with the Commission’s submissions, declared Section 12 of the said Act as unconstitutional thereby confirming all children born out of wedlock have the right to have their father’s name recorded in their birth certificates.

The KNCHR filed this case on 26 February 2013 seeking among other orders, an order for the invalidation of the Presidential Benefits (Amendment) Act, 2013 for reasons that it was enacted in an unconstitutional manner-without the involvement of the Salaries and Remunerations Commission. The KNCHR filed this Petition under its overarching mandate pursuant to article 249 of the Constitution that requires all constitutional Commissions to promote the sovereignty of Kenyans and to safeguard Democracy, good governance, the rule of law and constitutionalism. The Court declared the Presidential Benefits Package unconstitutional and invalidated it through its Judgment delivered on 11th September 2015.

The case involved parents who were denied access to their twin infants who were born out of a surrogacy agreement on the grounds that they were not the legal parents. The Commission successfully sought leave to be enjoined as amicus curiae to reveal the challenges that flow from the lack of legal recognition of children born out of surrogacy agreements. Judgment was delivered on 30th June 2014 where the Court ruled that the Director of Children Services breached the petitioners’ right to privacy by disclosing their medical conditions and that the act of separating the infants from their mother was not in their best interest. Further the genetic parents are to be registered as the legal parents of the infants.

The Petition challenged the constitutionality of the mandatory death penalty and indeterminate life sentences. The KNCHR participated in the proceedings as amicus curiae. The Court declared as unconstitutional the mandatory death penalty under section 204 of the Penal Code but made it clear (for the avoidance of doubt) that the order does not affect the validity of the death penalty contemplated under Article 26(3) of the Constitution. The Court ordered further that the cases relating to the two Petitioners (Francis Karioki & Wilson Thirimbu Mwangi) to be submitted to the High Court for sentencing hearing on priority basis and that the Attorney General (AG), Director of Public Prosecutions and other relevant stakeholders shall prepare a detailed professional review with a view to setting up a sentencing hearings for cases similar to the two matters. The AG shall present a progress report to the Supreme Court in 12 months. The Court directed that the Judgment should be placed before the Speakers of the National Assembly and the Senate, the AG and Kenya Law Reform Commission for any necessary amendment or enactment to give this effect to this judgment on mandatory death penalty and on parameters on life imprisonment. The Court however was of the view that there was insufficient material to determine the question of indeterminate life sentences from the pleadings and submissions and also due the fact that it was not an issue for appeal in the High Court and the Court of Appeal.
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