LAWS OF KENYA
Revised edition 2008 (2001)Published by the National Council for Law Reportingwith the Authority of the Attorney General.
THE CONSTITUTION OF KENYA
ARRANGEMENT OF SECTIONS
Chapter I - the republIC of Kenya
Section
1 – Declaration of Republic.
1A-Political system.
2 – Public Seal.
2A - (Repealed).
3 – Constitution of Republic of Kenya.
Chapter II – the exeCutIve
Part 1 – The President and the Vice – President
4- The office of President.
5 – Election of President.
6 – Vacancy in office of President.7 – Assumption of office of President.
8 – Oath of President.
9 – Term of office of President.
10 – Determination of questions as to validity of presidential elections, etc.
11 – Exercise of President’s functions during absence, illness, etc.
12 – Removal of President on grounds of incapacity.
13 – Salary and allowances of President.
14 – Protection of President in respect of legal proceedings during office.
15 – The Vice- President of Kenya.
15A - Prime Minister and Deputy Prime Ministers.
Part 2 – Ministers and the Cabinet
16 – Ministers of Government of Kenya.
17 – Cabinet.
18 – Allocation of portfolios to Ministers.
19 – Assistant Ministers.
20 – Absence of Vice-President, Ministers and Assistant Ministers from Kenya.
21 – Oaths to be taken by Ministers and Assistant Ministers.
22 – Appointing of permanent secretaries.
Part 3 – Executive Powers 23 – Executive authority of Government of Kenya.
24 – Constitution of offices.
25 – Tenure of office in the service of the Republic.
Section
26 – Attorney – General.
27 – Prerogative of mercy.
28 – Advisory Committee on Prerogative of Mercy.
29 – Functions of Advisory Committee on Prerogative of Mercy.
Chapter III – parlIament
Part 1 – Composition of Parliament
30 – Legislative power.31 – Composition of National Assembly.32 – Election of elected members. 33 – Nominated members.
34 – Qualifications for election.35 – Disqualifications for election.
36 – Attorney-General to be member of National Assembly.
37 – Speaker of National Assembly.
38 – Deputy Speaker of National Assembly.
39 – Vacation of seat in National Assembly.
40 – Vacation of seat in National Assembly upon resignation from party.
41 – Electoral Commission.
42 – Constituencies.
42A – Conduct of elections.
43 – Qualifications and disqualifications for registration as a voter.
44 – Determination of questions as to membership of National Assembly.45 – (Repealed.)
Part 1A The Parliamentary Service and the Parliamentary Service Commission.
45A – Parliamentary Service.45B – Parliamentary Service Commission.
Part 2 – Legislation and Procedure in the National Assembly
46 – Exercise of legislative power of Parliament.47 – Alteration of Constitution.
48 – Restrictions with regard to certain financial measures.
49 – Oaths to be taken by members of National Assembly.
50 – Presiding in National Assembly.
51 – Quorum in National Assembly.
52 – Powers of President in Parliament.
53 – Official languages.
54 – Voting in National Assembly.
55 – Unqualified persons sitting or voting.
56 – Regulation of procedure in National Assembly.57 – Powers, privileges and immunities of National Assembly.
Part 3 – Summoning, Prorogation and Dissolution of Parliament
Section
58 – Summoning of Parliament.
59 – Prorogation and dissolution of Parliament.
Chapter Iv – the JudICature
Part 1 – The High Court and the Court of Appeal
60 – Establishment of High Court.
61 – Appointment of judges of High Court.
62 – Tenure of office of judges of High Court.
63 – Oaths to be taken by judges of High Court.
64 – Establishment of Court of Appeal.
Part 2 – Other Courts
65 – Establishment of other courts.
66 – Kadhi’s courts.
67 – References and appeals on interpretation of Constitution.
Part 3 – The Judicial Service Commission
68 – Judicial Service Commission.
69 – Appointment, etc., of judicial officers.
Chapter v – proteCtIon of fundamental rIghts and freedoms of the IndIvIdual
70 – Fundamental rights and freedoms of the individual.
71 – Protection of right to life.
72 – Protection of right to personal liberty.
73 – Protection from slavery and forced labour.
74 – Protection from inhuman treatment.
75 – Protection from deprivation of property.
76 – Protection against arbitrary search or entry.
77 – Provisions to secure protection of law.
78 – Protection of freedom of conscience.
79 – Protection of freedom of expression.
80 – Protection of freedom of assembly and association.
81 – Protection of freedom of movement.
82 – Protection from discrimination on grounds of race, etc.
83 – Derogation from fundamental rights and freedoms.
84 – Enforcement of protective provisions.
85 – Preservation of public security.
86 – Interpretation and savings.
Chapter vI – CItIzenshIp
Section 87 – Persons who become citizens on 12th December, 1963.88 – Persons entitled to be registered as citizens by virtue of connexion with
Kenya before 12th December, 1963.89 – Persons born in Kenya after 11th December, 1963.90 – Persons born outside Kenya after 11th December, 1963. 91 – Marriage to Kenya citizen.92 – Persons eligible to be registered as Kenya citizens.93 – Persons eligible to be naturalized as Kenya citizens.94 – Deprivation of citizenship.95 – Commonwealth citizens. 96 – Powers of Parliament. 97 – Dual citizenship.98 – Interpretation.
Chapter vII – fInanCe
99 – Consolidated Fund and other funds of the Government of Kenya.
100 – Authorization of expenditure from Consolidated Fund by appropriation.
101 – Authorization of expenditure in advance of appropriation.
102 – Contingencies Fund.
103 – Public debt of Government of Kenya.
104 – Remuneration of certain officers.
105 – Controller and Auditor-General.
Chapter vIII – the publIC servICe
106 – Public Service Commission.
107 – Appointment, etc., of public officers.
108 – Appointment, etc., of members of Kenya Police Force
109 – Attorney-General.
110 – Controller and Auditor-General.
111 – Appointment of Permanent Secretaries, Ambassadors, etc.
112 – Pensions laws and protection of pensions rights.
113 – Power to withhold pensions, etc.
Chapter Ix – trust land
114 – Interpretation of Chapter.
115 – Trust land to vest in county councils.
116 – Registration of individual titles to Trust land.
117 – Setting apart of Trust land by county councils.
118 – Setting apart of Trust land for purposes of Government, etc.
119 – Land no longer required for purposes of Government, etc.
120 – Escheat of rights in former Trust land.
Chapter x – general
Section
121 – Resignations.
122 – Re-appointments and concurrent appointments.
123 – Interpretation.
Chapter xI– transItory
124 – Effect of Chapter.
125 – Appeals in respect of certain decisions affecting pensions benefits.
126 – Compulsory retirement to facilitate appointment of local candidates.127 – (Repealed).
THE consTiTuTion oF KEnYA
cHAPTER 1
the republIC of Kenya
1. Kenya is a sovereign Republic.
1A. The Republic of Kenya shall be a multiparty democratic state.
. The Public Seal of Kenya shall be such device as may be prescribed by or under an Act of Parliament.
A. (Repealed by 12 of 1991, s. 2).
. This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void-
Provided that the provisions of this section as to consistency with this Constitution shall not apply in respect of an Act made pursuant to to section 15A(3).
Chapter II
the exeCutIve
part I
the presIdent and the vICe-presIdent
. There shall be a President of Kenya, who shall be the Head of State and Commander-in-Chief of the armed forces of the Republic.
. (1) The President shall be elected in accordance with this Chapter and, subject thereto, with any Act of Parliament regulating the election of a President.
(2) A person shall be qualified to be nominated for election as President if, and shall not be so qualified unless, he -
5 of 1969, 2nd Sch.,
2 of 1974, 1 of 1975,
14 of 1975, 13 of 1977,
1 of 1979, 5 of 1979,
7 of 1982, 7 of 1984,
6 of 1985, 14 of 1986,
20 of 1987, 4 of 1988,
17 of 1990, 10 of 1991,
12 of 1991, 6 of 1992,
9 of 1997, 3 of 1999,
L.N. 6/ 2006,
3 of 2008.
Declaration of Republic.
Political system.9 of 1997, s. 2.
Public Seal.
Constitution of Republic of Kenya.
3 of 2008
The office of
President.
Election of President. 7 of 1982, s.3.12 of 1991, s.3,6 of 1992, s.3.
(a) is a citizen of Kenya; and
(b) has attained the age of thirty-five years; and
(c) is registered in some constituency as a voter in elections to the National Assembly.
(3) Whenever Parliament is dissolved, an election of a President shall be held at the ensuing general election, and at that election -
minimum of twenty-five per cent of the valid votes cast in at least five of the eight provinces shall be declared to be
elected as President.
(4) A fresh election of a President shall be commenced and held in the manner prescribed by subsection (5) where -
(a) no candidate for President has been validly nominated before
the expiration of the time for the delivery of nominations in a presidential election;
Provided that where a fresh election is held pursuant to paragraph
Vacancy in office of
President.
Cap. 57.
Assumption of office
of President. 6 of 1992, s. 4,9 of 1997, s. 3.
of valid votes cast in the presidential election than any other candidate and who, in addition, receives a minimum
of twenty-five per cent of the votes cast in at least five
of the eight provinces shall be declared to be elected as President.
. (1) If the office of President becomes vacant by reason of the
death or resignation of the President, or by reason of his ceasing to hold
office by virtue of section 10 or section 12, an election of a President
shall be held within the period of ninety days immediately following the occurrence of that vacancy, and shall be held in the manner prescribed by section 5 (5).
(2) While the office of President is vacant as aforesaid, the functions of that office shall be exercised -
functions of the office of President, by such Minister as may
be appointed by the Cabinet.
(3) Where the Vice-President or any other Minister is exercising
the functions of the office of President by virtue of this section or of
section 11, he shall not act, except in accordance with a resolution of the Cabinet, in the exercise of the powers relating to -
. A person elected as President in accordance with this
Constitution shall assume office as President as soon as he is declared
to be elected.
. Aperson assuming the office of President shall, before entering upon the office, take and subscribe the oath of allegiance and such oath for the due execution of his office as may be prescribed by or under an Act of Parliament.
. (1) The President shall hold office for a term of five years
beginning from the date on which he is sworn in as President.
(2) No person shall be elected to hold office as President for more
than two terms.
(3) The President shall, unless his office becomes vacant by reason of his death, his resignation or his ceasing to hold office by virtue of section 10 or section 12, continue in office until the person elected as President at a subsequent presidential election assumes office.
(4) The holding of the office of President shall be incompatible with the holding of any office of profit or of an office in any professional or labour organization and with any professional activity or any other public employment.
10. (1) Subject to this section, section 44 shall apply to the hearing and determination of a question whether a person has been validly elected as President, as it applies to the hearing and determination of a question whether a person has been validly elected as a member of the National Assembly.
(2) Where a person applies to the High Court for the determination of more than one of the following questions, namely, whether the President was qualified to be nominated for election as President, or was validly elected as President, or was validly elected as a member of the National Assembly, he shall make one application only to the High Court.
Oath of President
Term of office of
President. 6 of 1992, s. 5.
Determination of questions asto validity ofpresidential elections,etc.
Exercise of President’s functions during absence,illness, etc.
Removal of President on grounds ofincapacity.
at that election, he shall cease to hold office as President upon
the expiration of the time allowed by law for the making of an application to the High Court under section 44 in respect of that election, or, where such an application is made by him or by theAttorney-General, upon the High Court determining that the person declared to be elected at that election has been validly elected:
Provided that -
Assembly until he ceases to hold office as President.
(4) Where the High Court determines under section 44 that the President has not been validly elected as President for any reason other than that he has not been validly elected as a member of the National Assembly or that the seat in the Assembly of the President has become
vacant, he shall cease to hold office as President.
11. Where the President intends to be absent from Kenya, or where he considers it desirable by reason of illness or any other cause to do so, he may in writing appoint the Vice-President to exercise, subject to section 6 (3) and subject to such restrictions or exceptions as he may
specify, the functions of his office.
1. (1) Any question whether the President, or any other person
exercising or about to exercise the functions of the office of President, is unable by reason of physical or mental infirmity to exercise the functions of that office, shall be determined in accordance with this section.
(2) Where the question is whether a person has become unable by
reason of physical or mental infirmity to exercise the functions of the office of President, and the Chief Justice is requested by resolution of
the Cabinet conveyed to him by the Speaker of the National Assembly to cause that question to be determined, then -
(a) the Chief Justice shall appoint a tribunal, which shall consist
of not less than five persons appointed by him from among
persons who are qualified as medical practitioners under the
law of Kenya, and who shall include any person nominated
for appointment in accordance with subsection (5); and
(b) the tribunal shall inquire into the matter and make a report to the Chief Justice, stating the opinion of the tribunal whether or not the person in respect of whom the question arises is,
by reason of physical or mental infirmity, unable to discharge
the functions of the office of President; and
(c) the Chief Justice shall certify accordingly under his hand
and cause the certificate to be conveyed to the Speaker of
the National Assembly:
Provided that the Chief Justice shall cause the question to be
determined without a resolution of the Cabinet if he receives a certificate
under the hand of the Speaker of the National Assembly to the effect that there are no Ministers present in Kenya, other than a person with respect to whom the question arises, and that the Speaker considers that it is in the interests of Kenya that the question should be determined without delay.
(3) Where the question is whether any person in respect of whom the Chief Justice has given a certificate in accordance with subsection (2) that he is unable to exercise the functions of the office of President, has ceased to be unable by reason of physical or mental infirmity to exercise those functions, and the Chief Justice is requested, by resolution of the Cabinet conveyed to him by the Speaker of the NationalAssembly, or by request under the hand of the person in respect of whom such certificate was given conveyed to him by the Speaker of the Assembly, to cause that question to be determined, then the Chief Justice shall appoint a tribunal in accordance with subsection (2) (a), and that tribunal shall inquire into the matter and report in accordance with paragraph (b) of that subsection, and the Chief Justice shall certify accordingly under his hand and cause the certificate to be conveyed to the Speaker of the Assembly.
(4) Where the Speaker of the National Assembly has received a certificate of the Chief Justice pursuant to this section that the President is unable to discharge the functions of his office, and within the succeeding period of three months the Speaker has not received any certificate of the Chief Justice pursuant to this section that the President has ceased to be unable to discharge the functions of his office, the President shall cease to hold office upon the expiration of the said period.
Salary andallowances of President. 6 of 1992, s. 6.
Protection of President in respectof legal proceedings
during office
(5) Where the Speaker conveys a resolution of the Cabinet to the Chief Justice under subsection (2) or (3), he shall forthwith notify the person in respect of whom the question arises, and that person may, by writing delivered to the Speaker within two days of his being so notified, nominate for appointment as members of the tribunal to be appointed by the Chief Justice under this section not more than two persons qualified to be so appointed.
(6) A certificate of the Chief Justice under this section shall be conclusive for the purposes of this Constitution, and shall not be questioned in any court.
(7) At any time when the office of Speaker of the National Assembly is vacant or the holder of that office is unable for any reason to exercise the functions vested in him by this section, those functions may be exercised by the Deputy Speaker of the Assembly.
1. (1) The President shall receive such salary, allowance
and benefits as may be determined by a resolution of the National
Assembly.
(2) Where the President ceases to hold office, he shall be entitled
to receive a pension, gratuity and other allowances together with such
other benefits and facilities, including adequate security, office, staff
and travel allowances, as may be prescribed by or under an Act of Parliament.
(3) The salary and allowances payable to the President and any pension or gratuity payable to him on retirement shall be a charge upon the Consolidated Fund.
(4) The salary, allowances and privileges of the President shall
not be varied to his disadvantage while he holds office.
(5) The pension and allowances payable to the President who has
ceased to hold office and the facilities and other benefits available to
him shall not be varied to his disadvantage during his lifetime.
1. (1) No criminal proceedings whatsoever shall be instituted or continued against the President while he holds office, or against any person while he is exercising the functions of the office of President.
(2) No civil proceedings in which relief is claimed in respect of anything done or omitted to be done shall be instituted or continued against the President while he holds office or against any person while he is exercising the functions of the office of President.
(3) Where provision is made by law limiting the time within which proceedings of any description may be brought against any person, a period of time during which a person holds or exercises the functions of the office of President shall not be taken into account in calculating any period of time prescribed by that law which determines whether any such proceedings as are mentioned in subsection (1) or (2) may be brought against that person.
1. (1) There shall be a Vice-President of Kenya, who shall be appointed by the President.
(2) The President shall appoint the Vice-President from among the Ministers who are elected members of the National Assembly:
Provided that no appointment to the office of Vice-President shall be made at any time when the functions of the office of President are being exercised by any person other than the President.
(3) The Vice-President shall be the principal assistant of the President in the discharge of his functions.
(4) The Vice-President shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament.
(5) During his tenure of office, the Vice-President shall not hold any office of profit other than those of Vice-President, Minister and member of the National Assembly.
(6) The office of the Vice-President shall become vacant -
(a) if the President so directs; or
(b) if the holder of the office ceases to be an elected member
of the National Assembly otherwise than by reason of the
dissolution of Parliament; or
(c) upon the election of a person to the office of President.
1A.(1) There shall be a Prime Minister of the Government of Kenya.
(a) the appointment and termination of office of the Prime
Minister, Deputy Prime Ministers and Ministers;
(b) the functions and powers of the Prime Minister and Deputy
Prime Ministers;
The Vice-President of Kenya.
Prime Minister and Deputy PrimeMinisters. A3/2008 Ministers of Government of Kenya.
9 of 1997, s. 4.
Cabinet. A3/2008
part 2
Ministers and the Cabinet
1. (1) There shall be such offices of Minister of the Government of Kenya as may be established by Parliament or, subject to any provisions made by Parliament, by the President.
(2) The President shall, subject to the provisions of any written law, appoint the Ministers from among the members of the National Assembly:
Provided that, if occasion arises for making an appointment to
the office of any Minister while Parliament stands dissolved, a person
who was a member of the National Assembly immediately before the
dissolution may be appointed to that office.
(3) The office of a Minister shall become vacant -
Assembly, if, when the Assembly first meets after that
dissolution, he is not then a member thereof.
(4) Whenever a person is elected to the office of President, the offices of all Ministers then holding office shall become vacant upon the occasion of the President first making one or more appointments to the office of Minister.
1. (1) There shall be a Cabinet consisting of the President, the Vice-President, Prime Minister, two Deputy Prime Ministers and the other Ministers.
office.
(4) The provisions of subsections (2) and (3) shall not apply in relation to -
(a) the appointment and removal from office of the Vice-
President, Ministers and Assistant Ministers under sections 15, 16 and 19, the assignment of responsibility to any Minister under section 18, or the giving of consent under section 20 to the Vice-President, a Minister or an Assistant Minister absenting himself from Kenya;
1. Responsibility for any of the business of the government of Kenya, including the administration of any of the departments of Government, may be assigned to the Vice-President and the several Ministers as the President may, by directions in writing, determine.
1. (1) The President may appointAssistant Ministers from among the members of the National Assembly to assist the President, Vice-President and Ministers in the performance of their duties:
Provided that, if occasion arises for making an appointment while Parliament stands dissolved, a person who was a member of the National Assembly immediately before the dissolution may be appointed as an Assistant Minister.
(2) The office of an Assistant Minister shall become vacant -
National Assembly, if when the Assembly first meets after
that dissolution, he is not then a member thereof; or
(d) upon the election of a person to the office of President.
0. The Vice-President, a Minister or an Assistant Minister shall not absent himself from Kenya except with the consent of the President.
Allocation of portfolios toMinisters
Assistant Ministers.
Absence of Vice-President, Ministersand Assistant Ministers from Kenya.
Oaths to be taken by Ministers and Assistant Ministers.
Appointmentof permanentsecretaries.
Executive authorityof Government of Kenya.
Constitution of
offices.
Tenure of office in
the service of the Republic.
1. A Minister or an Assistant Minister shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament.
. (1) The President may appoint such number of permanent secretaries as he may determine.
(2) There shall be a permanent secretary to the Office of the
President.
(3) Where the Vice-President or any other Minister has been charged with responsibility for a department of Government he shall exercise general direction and control over that department and, subject to that direction and control, every department of Government shall be under the supervision of a permanent secretary.
(4) The office of a permanent secretary shall be an office in the
public service.
(5) Two or more Government departments may be placed under the direct supervision of one permanent secretary and a Government department may be placed under the supervision of one or more permanent secretaries or two or more permanent secretaries.
part 3
Executive Powers
. (1) The executive authority of the Government of Kenya shall vest in the President and, subject to this Constitution, may be exercised by him either directly or through officers subordinate to him.
(2) Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other than the President.
. Subject to this Constitution and any other law, the powers of constituting and abolishing offices for the Republic of Kenya, of making appointments to any such office and terminating any such appointment, shall vest in the President.
. (1) Save in so far as may be otherwise provided by this Constitution or by any other law, every person who holds office in the service of the Republic of Kenya shall hold that office during the pleasure of the President:
Provided that this subsection shall not apply in the case of a person who enters into a contract of service in writing with the Government of Kenya by which he undertakes to serve the Government for a period which does not exceed three years.
(2) In this section “office in the service of the Republic of Kenya” means office in or membership of the public service, the armed forces of
the Republic, the National Youth Service or any other force or service established for the Republic of Kenya.
. (1) There shall be an Attorney-General whose office shall be an office in the public service.
(4) may be exercised by him in person or by officers subordinate to him
acting in accordance with his general or special instructions.
Attorney General
Prerogative of mercy. 14 of 1975, s.2.
Cap. 7.
Advisory Committeeon Prerogative ofMercy
for the purpose of those proceedings to any other court, shall be deemed to be part of those proceedings:
Provided that the power conferred on the Attorney-General by subsection (3) (c) shall not be exercised in relation to an appeal by a person convicted in criminal proceedings or to a question of law reserved at the instance of such a person.
(8) In the exercise of the functions vested in him by subsections
(3) and (4) of this section and by sections 44 and 55, the Attorney-General shall not be subject to the direction or control of any other person or authority.
. The President may -
(a) grant to a person convicted of an offence a pardon, either free or subject to lawful conditions;
(b) grant to a person a respite, either indefinite or for a specified
period, of the execution of a punishment imposed on that person for an offence;
(e) remove in whole or in part the non-qualification or the disqualification of a person, arising out of or in consequence
of the report of an election court under the provisions of the National Assembly and Presidential Elections Act, from registration as an elector on a register of electors or from nomination for election as an elected member of the National Assembly.
. (1) There shall be an Advisory Committee on the Prerogative of Mercy which shall consist of -
(a) the Attorney-General; and
(b) not less than three nor more than five other members
appointed by the President, of whom at least one shall be a
Minister and at least one shall be a person qualified to practice
in Kenya as a medical practitioner.
(2) A member of the Committee appointed under subsection (1)
(b) shall hold his seat thereon for such period as may be specified in
the instrument by which he was appointed:
Provided that his seat shall become vacant -
. (1) Where a person has been sentenced to death (otherwise than by a court-martial) for an offence, the President shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as he may require, to be considered at a meeting of theAdvisory Committee on the Prerogative of Mercy; and after obtaining the advice of the Committee he shall decide in his own judgment whether to exercise any of his functions under section 27.
(2) The President may consult with the Committee before deciding whether to exercise any of his functions under section 27 in a case not falling within subsection (1), but he shall not be obliged to act in accordance with the advice of the Committee.
cHAPTER iii
part 1
Composition of Parliament
0. The legislative power of the Republic shall vest in the Parliament of Kenya, which shall consist of the President and the National Assembly.
1. Subject to this Constitution, the National Assembly shall consist of elected members elected in accordance with section 32, nominated members appointed in accordance with section 33 and the ex officio members.
Functions of Advisory Committeeon Prerogative ofMercy.
Legislative power.
Composition ofNational Assembly Election of elected members. 6 of 1992, s. 7.
Nominated members. 9 of 1997, s. 5.
Qualifications for
election. 1 of 1979, s. 2,7 of 1982, s. 5,12 of 1991, s. 4.
. (1) Kenya shall be divided into constituencies in accordance with section 42, and each constituency shall elect one elected member to the NationalAssembly in such manner as, subject to this Constitution, may be prescribed by or under any law.
(2) Every person who is registered in a constituency as a voter in elections of elected members shall, unless he is detained in lawful custody, or is disqualified by law from voting in those elections on the ground of his having been convicted of an offence connected with elections or on the ground of his having been reported guilty of such an offence by the court trying an election petition, be entitled so to vote in that constituency in accordance with the law; and no other person may so vote.
(3) (Repealed by 6 of 1992, s. 7).
. (1) Subject to this section, there shall be twelve nominated members of the NationalAssembly appointed by the President following a general election, to represent special interests.
(2) The persons to be appointed shall be persons who, if they had
been nominated for a parliamentary election, would be qualified to be
elected as members of the National Assembly.
. Subject to section 35, a person shall be qualified to be elected as a member of the National Assembly if, and shall not be qualified unless, at the date of his nomination for election—
to the National Assembly; and
. (1) Subject to any order made under subsection (6), a person
shall not be qualified to be elected as an elected member if, at the date
of his nomination for election, he -
(f) holds or is acting in any office in the public service (including
the office of judge or member of a court of law or an office to
which section 69 applies), in the armed forces of the Republic
or in a local government authority.
Disqualifications for
election. 5 of 1979, s. 2.
Attorney-Generalto be member of National Assembly.
Speaker of National Assembly.
(b) no account shall be taken of a sentence of imprisonment
imposed as an alternative to or in default of the payment
of a fine.
(3) Parliament may provide that a person who, at the date of his
nomination for election, holds or is acting in an office that is prescribed
by Parliament and the functions of which involve responsibility for or in connexion with the conduct of an election to the National Assembly or the compilation of a register of voters for the purpose of such an
election shall not be qualified to be elected as a member of the National
Assembly.
(4) Parliament may provide that a person who is convicted by a court of an offence that is prescribed by Parliament and that is connected with the election of members of the National Assembly or of a local government authority, or who is reported guilty of such an offence by the court trying an election petition, shall not be qualified to be nominated for election as a member of the National Assembly for such period (not exceeding five years) following his conviction or, as the case may be, following the report of the court as may be so prescribed.
(5) Parliament may provide that a particular office shall be deemed to be or not to be an office for the purposes of subsection (1) (f).
(6) The Minister for the time being responsible for elections to the National Assembly may, by order published in the Kenya Gazette, provide that a person shall not be qualified to be elected by virtue of holding an office specified in paragraph (f) of subsection (1), or specified for the purposes of that paragraph under subsection (5), which is prescribed in the order, if he holds that office after a date prescribed in the order, which date shall not be more than six months prior to the date of nomination for preliminary elections prescribed under an Act of Parliament:
Provided that no order under this subsection shall be made to operate with retrospective effect.
. The Attorney-General shall be an ex officio member of the National Assembly, but he shall not be entitled to vote on any question before the Assembly.
. (1) There shall be a Speaker of the National Assembly, who shall be elected by theAssembly, in accordance with the standing orders, from among persons who are members of the Assembly or are qualified to be elected as such members, other than the President, the Vice-President, Ministers, Assistant Ministers and the Attorney-General.
of Parliament; or
by the votes of not less than seventy-five per cent of all its
members (excluding the ex officio members).
(3) No business shall be transacted in the National Assembly
(other than an election of the Speaker) at any time when the office of
Speaker is vacant, but this subsection shall not prevent the transaction of business by a committee of the Assembly.
(4) The Speaker shall be an ex officio member of the National Assembly, whether or not he is elected from among the members of the Assembly.
. (1) There shall be a Deputy Speaker of the NationalAssembly, who shall be elected by the Assembly, in accordance with its standing orders, from among persons who are members of the Assembly other than the President, the Vice-President, Ministers, Assistant Ministers and the Attorney-General.
(2) The National Assembly shall elect a Deputy Speaker—
(a) subject to section 37 (3), when it first meets after a dissolution
of Parliament; and
(b) when it first meets after the office of Deputy Speaker has
become vacant otherwise than by reason of the dissolution
of Parliament,
or as soon thereafter as may be convenient.
of Parliament; or
Deputy Speaker of
National Assembly.
Vacation of seat in National Assembly7 of 1982, s. 6,12 of 1991, s. 5
Vacation of seat in National Assemblyupon resignationfrom party. 12 of 1991, s. 6.
otherwise than by reason of the dissolution of Parliament; or
(d) if the NationalAssembly so resolves, by resolution supported
by the votes of not less than seventy-five per cent of all its
members (excluding the ex officio members).
. (1) A member of the National Assembly shall vacate his seat if-
(a) he has ceased to be a citizen of Kenya;
(b) (Deleted 12 of 1991, s. 5).
(c) circumstance arise that, if he were not a member of the
Assembly, would cause him to be disqualified by section 35
Provided that the President may in any case if he thinks fit
direct that a member shall not vacate his seat by reason of his failure so to attend the Assembly.
(4) This section shall not apply to the Attorney-General.
0. A member of the National Assembly who, having stood at his election as an elected member with the support of or as a supporter of a political party, or having accepted appointment as a nominated member as a supporter of a political party, either-
shall vacate his seat forthwith unless in the meantime that party of which he was last a member has ceased to exist as a parliamentary party or he has resigned his seat:
Provided that this subsection shall not apply to any member who is elected as Speaker.
1. (1) There shall be an Electoral Commission, which shall consist of a chairman and not less than four and not more than twenty-one members appointed by the President.
(1A) Every member of the Commission shall be a citizen of Kenya.
(2) The Commission shall elect a vice-chairman from among its members.
(2A) The chairman and the vice-chairman of the Commission
shall be persons who have held or are qualified to hold office of judge
of the High Court or judge of appeal under this Constitution.
(3) A person shall not be qualified to be appointed a member of
the Commission if he is a member of the National Assembly or if he
holds or is acting in any office in the public service or in the armed
forces of the Republic.
the Commission, would cause him to be disqualified to be
appointed as such.
misbehavior, and shall not be so removed except in accordance with this section.
Electoral Commission. 17 of 1990, s. 2,9 of 1997, s. 6.
Cap. 16.
by the President if the question of his removal from office has been
referred to a tribunal appointed under subsection (7) and the tribunal has recommended to the President that he ought to be removed from
office for inability as aforesaid or for misbehavior.
(7) If the President considers that the question of removing a member of the Commission under this section ought to be investigated, then -
(a) the President shall appoint a tribunal, which shall consist of a chairman and four other members selected by the President from among persons
(i) who hold or have held the office of judge of the High
Court or judge of appeal; or
(ii) who are qualified to be appointed as judges of the High
Court under section 61 (3); or
(iii) upon whom the President has conferred the rank of Senior Counsel under section 17 of the Advocates Act; and
(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to him whether the member ought to be removed.
(8) If the question of removing a member of the Commission has been referred to a tribunal under this section, the President may suspend that member from the exercise of the functions of his office, and any such suspension may at any time be revoked by the President, and shall in any case cease to have effect if the tribunal recommends to the President that that member should not be removed.
or participation of a person not entitled to be present at or to participate in those proceedings:
Provided that any decision of the Commission shall require the concurrence of a majority of all its members.
. (1) Subject to this section, Kenya shall be divided into such number of constituencies having such boundaries and names as may be prescribed by order made by the Electoral Commission.
Constituencies. 14 of 1986, s.3,10 of 1991, s. 2.
Conduct of elections. 6 of 1992, s. 8, 9 of 1997, s. 7.
Qualifications and disqualifications
for registration as a voter.
2 of 1974, s. 2.
pursuance of any law, or whenever a variation has been made in the boundary of an existing administrative area, the Commission may carry out a review and make an alteration to the extent which it considers desirable in consequence of that census or variation.
(6) Every order made by the Commission under this section shall be published in the Kenya Gazette and shall come into effect upon the next dissolution of Parliament after it is made.
A. The Electoral Commission shall be responsible for -
. (1) Subject to subsection (2), a person shall be qualified to
be registered as a voter in elections to the National Assembly and in
elections of a President if, and shall not be qualified unless, at the date
of his application to be registered, he -
residential buildings there.
(2) No person shall be qualified to be registered as a voter in
elections to which this section applies
(d) if he is disqualified therefrom by Act of Parliament on
the grounds of his having been convicted of an offence connected with elections or on the grounds of his having been reported guilty of the offence by the court trying an election petition.
(3) A question whether a person is qualified to be registered as a
voter in elections to which this section applies shall be determined in such manner as may be prescribed by Parliament.
(4) Where a person is qualified to be registered in more than one
place as a voter in elections to which this section applies, he shall be
so registered only in the first of those places in which he applies to
be so registered, and Parliament may provide for the punishment of a person who, being already registered in one place as a voter in the elections or having applied to be so registered there and not having
had that application finally rejected, applies to be registered in another
place as a voter.
(5) Parliament may, in order to permit a person who has been adjudged or declared to be of unsound mind, adjudged or declared bankrupt or convicted of an offence referred to in subsection (2) (d) to appeal against the decision in accordance with any law, provided that, subject to such conditions as may be prescribed by Parliament, the decision shall not have effect for the purposes of subsection (2) until such time as may be so prescribed.
. (1) The High Court shall have jurisdiction to hear and determine any question whether -
(a) a person has been validly elected as a member of the National
Assembly; or
Determination of questions as tomembership ofNational Assembly. 7 of 1984, s.2,9 of 1997, s. 8.
ParliamentaryService.
(b) the seat in the National Assembly of a member thereof has
become vacant.
. (Repealed by 3 of 1999, s. 2).
part 1a
The Parliamentary Service and the Parliamentary
Service Commission
A. (1) There shall be a service to be known as the parliamentary service.
(2) There shall be a Clerk of the NationalAssembly and such other
officers and staff as may be appointed for the purposes of the National
Assembly in accordance with section 45B.
(3) The offices of the Clerk of the National Assembly and the officers and other staff provided for under subsection (2) shall be offices
in the parliamentary service.
B. (1) There shall be a Parliamentary Service Commission which shall consist of -
(2) A member of the Commission shall vacate office
(a) upon dissolution of the Parliament during which the member
was appointed to the Commission:
Provided that upon dissolution of Parliament, appointed
members of the Commission shall continue in office until
new members are appointed in their place by the next National Assembly;
ParliamentaryService Commission.
(e) if he is the Speaker or the leader of Government business,
or the leader of the opposition party with the highest number
of seats in the National Assembly, upon ceasing to hold
office as such.
(3) If the office of chairman of the Commission is vacant or
the chairman is for any reason unable to exercise the functions of his
office, then, until a person has been elected Speaker and has assumed the functions of chairman, or until the person holding that office has
resumed those functions, as the case may be, the vice-chairman or, if
the office of the vice-chairman is vacant, or the vice-chairman is for any reason unable to perform the functions of the office of chairman,
such one of the other appointed members as the Commission may elect shall act as chairman; and the vice-chairman or the other member shall, subject to subsection (2), continue to act until a person has been elected
to the office of Speaker and assumed the functions of chairman or, as the
case may be, until the person in whose place he is acting has assumed or resumed those functions.
(4) If the office of an appointed member of the Commission is
vacant or if such member is acting as chairman under subsection (3),
or is for any reason unable to exercise the functions of his office, the Assembly may appoint a person who is qualified to be appointed to be
a member to act in place of that member; and a person so appointed shall, subject to subsection (2), continue to act until a person has been
appointed to the office in which he is acting or has assumed the functions of that office, as the case may be, until the person in whose place he is
acting has resumed those functions.
(b) to appoint persons to hold or act in the offices of the Service
(including the power to confirm appointments) and to
exercise disciplinary control over persons holding or acting
in those offices (including the power to remove those persons from office);
(c) to provide such services and facilities as are necessary to
ensure efficient and effective functioning of the Assembly;
Assembly in each financial year estimates of expenditure
(which shall be a charge on the Consolidated Fund) of
the parliamentary service for the next following financial
year;
holding or acting in the offices of the Service;
(7) Subject to this section, the Commission may by regulations or otherwise regulate its own procedure and, with the consent of the President or the Public Service Commission, as may be appropriate, may confer powers or impose duties on any public officer or authority for the purpose of the discharge of its functions.
Provided that where on any matter consensus cannot be obtained, the decision of the Commission shall require the concurrence of a majority of all the members thereof.
(10) The Commission may, by directions in writing, delegate any of its powers under this section to any one or more of its members or to any officer in the parliamentary service.
(11) Notwithstanding anything to the contrary appearing in this section, the Commission may
necessary for the efficient and effective carrying out of its
functions;
(c) appoint competent persons, whether members of the
Commission or not, to be a committee or committees to
assist the Commission on such matters within the scope of
its functions as are referred to them by the Commission.
(12) Subject to this section, provision may be made by or under an Act of Parliament for prescribing the manner of the exercise of the functions of the Commission under this section and for any matters incidental or supplementary to the exercise of those functions.
part 2
Legislation and Procedure in the National Assembly
. (1) Subject to this Constitution, the legislative power of Parliament shall be exercisable by Bills passed by the National Assembly.
Speaker indicating the specific provisions of the Bill which in his
opinion should be reconsidered by the National Assembly including his recommendation for amendments.
votes of not less than sixty-five per cent of all the Members
of the National Assembly (excluding ex officio members)in which case the President shall assent to the Bill within fourteen days of the passing of the resolution.
(6)Alaw made by Parliament shall not come into operation until it has been published in the Kenya Gazette, but Parliament may postpone
Exercise of
legislative
power of Parliament.
6 of 1992, s. 9.
Alteration of Constitution.
the coming into operation of a law and, subject to section 77, may make laws with retrospective effect.
(7)Alaw made by Parliament shall be styled anAct of Parliament, and the words of enactment shall be “Enacted by the Parliament of
Kenya”.
. (1) Subject to this section, Parliament may alter this Constitution.
(2) A Bill for an Act of Parliament to alter this Constitution shall not be passed by the National Assembly unless it has been supported
on the second and third readings by the votes of not less than sixty-five
per cent of all the members of the Assembly (excluding the ex officio members).
(3) If, on the taking of a vote for the purposes of subsection (2), the Bill is supported by a majority of the members of the Assembly voting but not by the number of votes required by that subsection, and
the Bill is not opposed by thirty-five per cent of all the members of the
Assembly or more, then, subject to such limitations and conditions as may be prescribed by the standing orders of the Assembly, a further vote may be taken.
(4) When a Bill for an Act of Parliament to alter this Constitution has been introduced into the National Assembly, no alterations shall be made in it before it is presented to the President for his assent, except
alterations which are certified by the Speaker to be necessary because of the time that has elapsed since the Bill was first introduced into the
Assembly.
(5) A certificate of the Speaker under subsection (4) shall be
conclusive as regards proceedings in the Assembly, and shall not be questioned in any court.
to the amendment, modification or reenactment, with or without amendment or modification, of any provision of
this Constitution, the suspension or repeal of that provision and the making of a different provision in the place of that provision.
. Except upon the recommendation of the President signified
by a Minister, the National Assembly shall not -
(iii) the payment, issue or withdrawal from the Consolidated Fund or any other fund of the Government of Kenya of moneys not charged upon the fund or an increase in the amount of the payment, issue or withdrawal; or
. (1) Every member of the National Assembly shall, before taking his seat in theAssembly, take and subscribe the oath of allegiance before the Assembly, but a member may before taking and subscribing that oath take part in the election of the Speaker of the Assembly.
(2) A person elected as Speaker of the National Assembly who has not before his election as Speaker taken the oath as a member of the Assembly shall, before entering upon the duties of his office, take and subscribe the oath of allegiance before the Assembly.
0. There shall preside at any sitting of the National Assembly-
Restrictions with regard to certain
financial measures.
Oaths to be taken bymembers of National Assembly.
Presiding in NationalAssembly.
Assembly may elect for that purpose.
Quorum in NationalAssembly.
Powers of President in Parliament.
Official
languages. 1 of 1975,
s. 3, 1 of 1979, s. 3.
Voting in
National Assembly.
1. If any member of the National Assembly who is present takes objection that less than thirty members of the Assembly (besides the person presiding) are present in the Assembly and, after such interval as may be prescribed in the standing orders of the Assembly, the person presiding ascertains that there are still less than thirty members of the Assembly present, the person presiding shall thereupon adjourn the Assembly.
. The President shall be entitled -
(a) in the exercise of his functions as Head of State, to address
the National Assembly at any time he thinks fit to do so;
and
(b) in the exercise of his functions as Head of the Government
and as a member of the National Assembly, to attend all
meetings of the Assembly and to take part in all proceedings
thereof, and to vote on any question before the Assembly.
. (1) Subject to this section, the official languages of the National Assembly shall be Swahili and English and the business of the National Assembly may be conducted in either or both languages.
(2) Every Bill (including the memorandum accompanying a Bill), every Act of Parliament whenever enacted, all other actual or proposed legislation under the authority of an Act of Parliament, all financial resolutions and documents relating thereto, and every actual or proposed amendment of any of the foregoing, shall be written in English.
(3) In all proceedings of the National Assembly which involve the discussion of any of the following matters, that is to say, a Bill ( including the memorandum accompanying a Bill), anAct of Parliament, other legislation whether actual or proposed, a financial resolution or document relating thereto, or an actual or proposed amendment thereof, the wording of the matter shall, as occasion requires, be quoted in English.
. (1) Except as otherwise provided in this Constitution, any question proposed for decision in the National Assembly shall be determined by a majority of the votes of the members present and voting.
(2) On a question proposed for decision in the NationalAssembly, the person presiding in the Assembly shall -
. A person who sits or votes in the National Assembly knowing or having reasonable grounds for knowing that he is not entitled to do so shall be liable to a penalty not exceeding five hundred shillings, or such other sum as may be prescribed by Parliament, for each day on which he so sits or votes, and that penalty shall be recoverable by action in the High Court at the suit of the Attorney-General.
. (1) Subject to this Constitution, the National Assembly may-
special purposes as it thinks fit, and regulate the procedure
of any committee so established.
(2) Subject to this Constitution, the National Assembly may act notwithstanding a vacancy in its membership (including a vacancy not filled when the Assembly first meets after a general election), and the presence or participation of a person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.
. Without prejudice to the powers conferred by section 56, Parliament may, for the purpose of the orderly and effective discharge of the business of the NationalAssembly, provide for the powers, privileges and immunities of the Assembly and its committees and members.
part 3
Summoning Prorogation and Dissolution of Parliament
. (1) Subject to this section, each session of Parliament shall be held at such place within Kenya and shall commence at such time as the President may appoint.
Unqualified persons
sitting or voting.
Regulation ofProcedure in National Assembly.
Powers, privilegesand immunities of National Assembly.
Summoning ofParliament.
Prorogation anddissolution of Parliament.
Establishment of High Court.
(2) There shall be a session of Parliament at least once in every year, so that a period of twelve months shall not intervene between the
last sitting of the National Assembly in one session and the first sitting
thereof in the next session.
(3) Whenever Parliament is dissolved, a general election of
members of the National Assembly shall be held, and the first session
of the new Parliament shall commence within three months after that dissolution.
(4) Subject to this section, the sittings of the National Assembly in a session of Parliament shall be held at such time and on such days as may be determined in accordance with the standing orders of the Assembly.
. (1) The President may at any time prorogue Parliament.
(2) The President may at any time dissolve Parliament.
(3) If the National Assembly passes a resolution which is supportedbythe votes ofamajorityofallthemembersoftheAssembly (excluding the ex officio members), and of which not less than seven days’ notice has been given in accordance with the standing orders of
the Assembly, declaring that it has no confidence in the Government
of Kenya, and the President does not within three days of the passing
of that resolution either resign from his office or dissolve Parliament,
Parliament shall stand dissolved on the fourth day following the day on which that resolution was passed.
(4) Parliament, unless sooner dissolved, shall continue for five years from the date when the National Assembly first meets after
dissolution and shall then stand dissolved.
(5) At any time when Kenya is at war, Parliament may from time
to time provide for the extension of the period of five years specified in
subsection (4) for not more than twelve months at a time:
Provided that the life of Parliament shall not be extended under
this subsection by more than five years.
part 1
The High Court and the Court of Appeal
0. (1) There shall be a High Court, which shall be a superior court of record, and which shall have unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.
vacancy in the office of a judge of that Court.
(4) The office of a puisne judge shall not be abolished while there
is a substantive holder thereof.
(3) A person shall not be qualified to be appointed a judge of the
High Court unless -
or other of the qualifications specified in paragraphs (a), (b),
(c) and (d) of section 12 (1) of the Advocates Act as in force on 12th December, 1963.
(4) If the office of Chief Justice is vacant, or if the Chief Justice is for any reason unable to discharge the functions of his office, the President may appoint a puisne judge to act as Chief Justice, and a puisne judge so appointed shall exercise the functions of that office until a person is appointed to and assumes the functions of that office,
or until the Chief Justice resumes those functions, as the case may be, or until his appointment is sooner revoked by the President.
Appointment ofjudges of High Court.4 of 1988, s.2,17 of 1990, s. 3.
Cap. 16 (1986).
Tenure of office of
judges of High Court.4 of 1988, s. 3, 17 of1990, s. 4.
(5) If the office of a puisne judge is vacant or if a puisne judge is
appointed to act as Chief Justice or is for any reason unable to discharge
the functions of his office, or if the Chief Justice advises the President
that the state of business in the High Court so requires, the President, acting in accordance with the advice of the Judicial Service Commission,
may appoint a person who is qualified to be appointed a judge of the
High Court to act as a puisne judge; and a person may act as a puisne judge notwithstanding that he has attained the age prescribed for the purposes of section 62 (1).
(6) A person appointed under subsection (5) to act as a puisne judge shall, subject to subsections (4) and (7) of section 62, continue to act for the period of his appointment or, if no period is specified, until his appointment is revoked by the President, acting in accordance with the advice of the Judicial Service Commission, and may continue to act thereafter for so long as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that have already been commenced before him.
. (1) Subject to this section, a judge of the High Court shall
vacate his office when he attains such age as may be prescribed by
Parliament.
(2) Notwithstanding that he has attained the age prescribed for the purposes of subsection (1), a judge of the High Court may continue in office for so long after attaining that age as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age.
(3) A judge of the High Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be removed except in accordance with this section.
(4) A judge of the High Court shall be removed from office by the President if the question of his removal has been referred to a tribunal appointed under subsection (5) and the tribunal has recommended to the President that the judge ought to be removed from office for inability as aforesaid or for misbehaviour.
(5) If the Chief Justice represents to the President that the question of removing a puisne judge under this section ought to be investigated, then -
(a) the President shall appoint a tribunal which shall consist of
a chairman and four other members selected by the President
from among persons -
(i) who hold or have held the office of judge of the High
Court or judge of appeal; or
(ii) who are qualified to be appointed as judges of the High
Court under section 61 (3); or
(iii) upon whom the President has conferred the rank of Senior Counsel under section 17 of the Advocates Act; and
(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to the President whether that judge ought to be removed under this section.
(6) Where the question of removing a judge from office has been referred to a tribunal under this section, the President, acting in accordance with the advice of the Chief Justice, may suspend the judge from exercising the functions of his office and any such suspension may at any time be revoked by the President, acting in accordance with the advice of Chief Justice, and shall in any case cease to have effect if the tribunal recommend to the President that the judge ought not to be removed from office.
(7) Where the question arises as whether the Chief Justice has become unable by reason of physical or mental infirmity to exercise the functions of his office or that his conduct ought to be investigated, then the President shall appoint a tribunal consisting of five members appointed by him in the manner provided under subsection (8).
(8) The tribunal appointed under subsection (7) shall consist of the following members -
National Assembly who shall be the chairman;
appeal;
Cap. 16.
Cap. 16.
Oaths to be taken byjudges of High Court.
Establishment of Court of Appeal.13 of 1977, s. 2, 7 of1984, s. 3.
Establishment of other courts.
Kadhis’ courts. .
referred to a tribunal under this section he shall not exercise any of the
functions of his office pending the decision of the tribunal; but he will
resume those functions if the tribunal recommends to the President that
the Chief Justice ought not be removed from office.
. A judge of the High Court shall not enter upon the duties of his office until he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament.
. (1) There shall be a Court of Appeal which shall be a superior court of record, and which shall have such jurisdiction and powers in relation to appeals from the High Court as may be conferred on it by law.
part 2
Other Courts
. (1) Parliament may establish courts subordinate to the High Court and courts-martial, and a court so established shall, subject to this Constitution, have such jurisdiction and powers as may be conferred on it by any law.
. (1) There shall be a Chief Kadhi and such number, not being less than three, of other Kadhis as may be prescribed by or under an Act of Parliament.
(2) A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless -
to any sect or sects of Muslims as qualifies him, in the
opinion of the Judicial Service Commission, to hold a
Kadhi’s court.
References and appeals oninterpretation ofConstitution.
Judicial Service Commission.
(4) Where a subordinate court or a court-martial has given a
final decision in civil or criminal proceedings on a question as to the
interpretation of this Constitution, and the question has not already been referred to the High Court under subsection (1) of this section or under section 84 (3), an appeal shall lie against that decision as of right to the High Court, either -
by way of that other subordinate court or court-martial.
part 3
The Judicial Service Commission
. (1) There shall be a Judicial Service Commission which shall consist of -
confer powers or impose duties on any public officer or authority for
the purpose of the discharge of its functions.
(4) Subject to any regulations made under subsection (3), the Commission may act notwithstanding a vacancy in its membership or the absence of a member, and its proceedings shall not be invalidated by the presence or participation of a person not entitled to be present at or to participate in those proceedings:
Provided that a decision of the Commission shall require the concurrence of a majority of all the members thereof.
. (1) The power to appoint persons to hold or act in an
office to which this section applies (including the power to confirm
appointments), the power to exercise disciplinary control over persons
holding or acting in those offices and the power to remove those persons from office shall vest in the Judicial Service Commission.
(2) The Judicial Service Commission may, by directions in
writing and subject to such conditions as it thinks fit, delegate any of
its powers under subsection (1) to any one or more of its members or to any judge of the High Court or to any person holding or acting in an
office to which this section applies:
Provided that a power that relates to an office the holder of which is required to possess legal qualifications may not be delegated under this subsection except to one or more members of the Commission.
Court;
(b) the office of the Chief Magistrate, the Principal Magistrate,
the Senior Resident Magistrate, Resident Magistrate or
District Magistrate;
(c) the office of any other person empowered to hold or
be a member of a subordinate court exercising criminal
jurisdiction;
any court as may be prescribed by Parliament.
Appointment, etc., of
judicial officers.
4 of 1988, s. 4.
Fundamental rightsand freedoms of the individual.
Protection of rightto life.
0. Whereas every person in Kenya is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely
the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.
1. (1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.
(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in those cases hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use of
force to such an extent as is reasonably justifiable in the circumstances
of the case -
or
(d) in order to prevent the commission by that person of a criminal offence,
or if he dies as the result of a lawful act of war.
. (1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases -
fulfilment of an obligation imposed on him by law;
Protection of right topersonal liberty.20 of 1987. 4 of 1988, s.5.
(j) to such extent as may be necessary in the execution of
a lawful order requiring that person to remain within a
specified area within Kenya or prohibiting him from being
within such an area, or to such extent as may be reasonably
justifiable for the taking of proceedings against that person
relating to the making of any such order, or to such extent
as may be reasonably justifiable for restraining that person
during a visit that he is permitted to make to a part of Kenya
in which, in consequence of the order, his presence would
otherwise be unlawful.
(2) A person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.
and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a court within twenty-four hours of his arrest or from the commencement of his detention, or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.
(6) A person who is unlawfully arrested or detained by another person shall be entitled to compensation therefor from that other person.
. (1) No person shall be held in slavery or servitude.
(2) No person shall be required to perform forced labour.
(3) For the purposes of this section “forced labour” does not
include -
is reasonably justifiable, in the circumstances of a situation
arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation; or
(e) labour reasonably required as part of reasonable and normal communal or other civic obligations.
. (1) No person shall be subject to torture or to inhuman or degrading punishment or other treatment.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section
to the extent that the law in question authorizes the infliction of any
description of punishment that was lawful in Kenya on 11th December, 1963.
Protection from slavery and forcedlabour.
Protection from inhuman treatment.
Protection from deprivationof property. 13 of 1977, s. 3.
. (1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied -
(a) the taking of possession or acquisition is necessary in the
interests of defence, public safety, public order, public
morality, public health, town and country planning or the
development or utilization of property so as to promote the
public benefit; and
(b) the necessity therefor is such as to afford reasonable
justification for the causing of hardship that may result to any
person having an interest in or right over the property; and
(c) provision is made by a law applicable to that taking of
possession or acquisition for the prompt payment of full
compensation.
(2) Every person having an interest or right in or over property which is compulsorily taken possession of or whose interest in or right over any property is compulsorily acquired shall have a right of direct access to the High Court for -
Provided that if Parliament so provides in relation to a matter referred to in paragraph (a) the right of access shall be by way of appeal (exercisable as of right at the instance of the person having the right or interest in the property) from a tribunal or authority, other than the High Court, having jurisdiction under any law to determine that matter.
(iii) as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;
(vii) for so long only as may be necessary for the purposes of an examination, investigation, trial or inquiry or, in the case of land, for the purposes of the carrying out thereon of work of soil conservation or the conservation of other natural resources or work relating to agricultural development or improvement (being work relating to the development or improvement that the owner or occupier of the land has been required, and has without reasonable excuse refused or failed, to carry out),
and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be
reasonably justifiable in a democratic society; or
Protection againstarbitrary search orentry.
(ii) property of a deceased person, a person of unsound mind or a person who has not attained the age of eighteen years,
for the purpose of its administration for the benefit of the persons entitled to the beneficial interest therein;
(iii)property ofapersonadjudged bankruptora bodycorporate in liquidation, for the purpose of its administration for the
benefit of the creditors of the bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or
(iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court or, by order of a court, for the purpose of giving effect to the trust.
(a) that is reasonably required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilization of mineral resources, or the development or utilization of any other property in such a manner as to promote the public
benefit;
(b) that is reasonably required for the purpose of promoting the rights or freedoms of other persons;
(c) that authorizes an officer or agent of the Government of
Kenya, or of a local government authority, or of a body corporate established by law for public purposes, to enter on
the premises of a person in order to inspect those premises or anything thereon for the purpose of a tax, rate or due or in order to carry out work connected with property that is lawfully on those premises and that belongs to that Government, authority or body corporate, as the case may be; or
(d) that authorizes, for the purpose of enforcing the judgment or
order of a court in civil proceedings, the entry upon premises
by order of a court,
and except so far as that provision or, as the case may be, anything done
under the authority thereof is shown not to be reasonably justifiable in
a democratic society.
. (1) If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
and except with his own consent the trial shall not take place in his
Provisions to secure protection of law.
absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.
(8) No person shall be convicted of a criminal offence unless that
offence is defined, and the penalty therefor is prescribed, in a written
law:
Provided that nothing in this subsection shall prevent a court from punishing a person for contempt notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty therefor is not so prescribed.
(9) A court or other adjudicating authority prescribed by law for the determination of the existence or extent of a civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by a person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.
(10) Except with the agreement of all the parties thereto, all
proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.
imposes conditions that must be satisfied if witnesses called
to testify on behalf of an accused person are to be paid their
expenses out of public funds; or
Protection of freedom of conscience.
(14) Nothing contained in subsection (2) (d) shall be construed as entitling a person to legal representation at public expense.
(15) In this section “criminal offence” means a criminal offence
under the law of Kenya.
. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section that freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.
and except so far as that provision or, as the case may be, the
thing done under the authority thereof is shown not to be
reasonably justifiable in a democratic society.
confidence, maintaining the authority and independence of
the courts or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television; or
(c) that imposes restrictions upon public officers or upon persons
in the service of a local government authority, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably
justifiable in a democratic society.
0. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.
Protection of freedom of expression.
Protection of freedom of assembly andassociation.
Protection of freedom of movement.
safety, public order, public morality or public health;
(b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons;
(c) that imposes restrictions upon public officers, members
of a disciplined force, or persons in the service of a local government authority; or
(d) for the registration of trade unions and associations of trade unions in a register established by or under any law, and for imposing reasonable conditions relating to the requirements for entry on such a register (including conditions as to the minimum number of persons necessary to constitute a trade
union qualified for registration, or of members necessary to constitute an association of trade unions qualified for
registration, and conditions whereby registration may be refused on the grounds that another trade union already registered or association of trade unions already registered,
as the case may be, is sufficiently representative of the whole
or of a substantial proportion of the interests in respect of which registration of a trade union or association of trade unions is sought),
and except so far as that provision or, as the case may be, the thing done
under the authority thereof is shown not to be reasonably justifiable in
a democratic society.
1. (1) No citizen of Kenya shall be deprived of his freedom of movement, that is to say, the right to move freely throughout Kenya, the right to reside in any part of Kenya, the right to enter Kenya, the right to leave Kenya and immunity from expulsion from Kenya.
residence within Kenya or on the right to leave Kenya of persons generally or any class of persons that are reasonably required in the interests of defence, public safety, public order, public morality, public health or the protection or control of nomadic peoples and except so far as that provision or, as the case may be, the thing done under the
authority thereof is shown not to be reasonably justifiable
in a democratic society;
public officers or of members of a disciplined force;
the fulfilment of any obligations imposed on that person by
law and except so far as that provision or, as the case may
be, the thing done under the authority thereof, is shown not
to be reasonably justifiable in a democratic society.
(4) If a person whose freedom of movement has been restricted by virtue of a provision referred to in subsection (3) (a) so requests at any time during the period of that restriction not earlier than three months after the order was made or three months after he last made the request, as the case may be, his case shall be reviewed by an independent and impartial tribunal presided over by a person appointed by the President
from among persons qualified to be appointed as a judge of the High
Court.
Cap. 104.Cap. 105.
Protection from discrimination on the grounds of race, etc.9 of 1997, s. 9,
Provided that no law amending or replacing either of those Acts shall impose, or authorize the imposition of, restrictions on the rights guaranteed by this section greater than the restrictions on those rights in force under that Act on 31st May, 1963, and no such restriction shall be imposed under either of those Acts, or by or under any such law, in or in respect of any area other than an area in or in respect of which a restriction was in force under that Act on 31st May, 1963.
. (1) Subject to subsections (4), (5) and (8), no law shall make any provision that is discriminatory either of itself or in its effect.
(2) Subject to subsections (6), (8) and (9), no person shall be treated in a discriminatory manner by a person acting by virtue of any written law or in the performance of the functions of a public office or a public authority.
(3) In this section the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
(4) Subsection (1) shall not apply to any law so far as that law makes provision -
* The Outlying Districts Act (Cap. 104) and the Special Districts (Administration) Act (Cap. 105) were repealed by 10 of 1997.
law;
reasonably justifiable in a democratic society.
(5) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that it makes provision with respect to standards or qualifications (not being standards or qualifications specifically relating to race, tribe, place of origin or residence or other local connexion, political opinion, colour or creed) to be required of a person who is appointed to an office in the public service, in a disciplined force, in the service of a local government authority or in a body corporate established by any law for public purposes.
Derogation fromfundamental rightsand freedoms.
Cap. 57.
79 (2), 80 (2), or paragraph (a) or (b) of section 81 (3).
(a) he shall, as soon as reasonably practicable and in any
case not more than five days after the commencement of
his detention, be furnished with a statement in writing in a language that he understands specifying in detail the grounds upon which he is detained;
(b) not more than fourteen days after the commencement
of his detention, a notification shall be published in the
Kenya Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorized;
(c) not more than one month after the commencement of his detention and thereafter during his detention at intervals of not more than six months, his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person appointed by the President from
among persons qualified to be appointed as a judge of the
High Court;
. (1) Subject to subsection (6), if a person alleges that any of the provisions of sections 70 to 83 (inclusive) has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if another person alleges a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
Enforcement of protectiveprovisions.6 of 1992, s. 10,9 of 1997, s. 10.
Preservation of public security.
Cap. 57.
or desirable for the purpose of enabling that Court, more effectively, to exercise the jurisdiction conferred upon it by this section; and
(b) shall make provision -
(i) for the rendering of financial assistance to any indigent
citizen of Kenya where his right under this Chapter has been infringed or with a view to enabling him engage the services of an advocate to prosecute his claim; and
(ii) for ensuring that allegations of infringement of such rights
are substantial and the requirement or need for financial
or legal aid is real.
(5) Whenever the election of the President results in a change in
the holder of that office an order made under this section and in force immediately before the day on which the President assumes office
shall cease to have effect on the expiration of seven days commencing with that day.
(6) The expiry or revocation of an order made under this section shall be without prejudice to the validity of anything previously done under the order or to the making of a new order.
. (1) In this Chapter, except where the context otherwise requires -
“contravention”, in relation to a requirement, includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;
“court” means any court having jurisdiction in Kenya other than a court established by a disciplinary law, but includes, in sections 71 and 73, a court established by a disciplinary law;
“disciplinary law” means a law regulating the discipline of a
disciplined force;
“disciplined force” means -
“legal representative” means a person entitled to practise as an
advocate in Kenya; and
“member”, in relation to a disciplined force, includes any person who, under the law regulating the discipline of that force, is subject to that discipline.
Interpretation andsavings.
Persons who become citizens on 12th December, 1963.
Persons entitled to be registered ascitizens by virtueof connexion with Kenya before 12th December, 1963.
raised otherwise than as aforesaid and lawfully present in Kenya, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter.
*. (1) Every person who, having been born in Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Kenya on 12th December, 1963:
Provided that a person shall not become a citizen of Kenya by virtue of this subsection if neither of his parents was born in Kenya.
(2) Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father becomes, or would but for his death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963.
*. (1)A person who, but for the proviso to section 87 (1), would be a citizen of Kenya by virtue of that subsection shall be entitled, upon making application before the specified date in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya:
Provided that a person who has not attained the age of twenty-one years (other than a woman who is or has been married) may not himself make an application under this subsection, but an application may be made on his behalf by his parent or guardian.
(2) A woman who, on 11th December, 1963, has been married to a person -
*Sections 87 and 88, although spent in their effect, are retained for
the sake of clarification. The same applies to section 97(2) and section
98(6)(b)
shall be entitled, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya.
(3) A woman who, on 11th December, 1963, has been married to a person who becomes, or would but for his death have become, entitled to be registered as a citizen of Kenya under subsection (1) or (5), but whose marriage has been terminated by death or dissolution before 12th December, 1963, or is so terminated on or after that date but before that person exercises his right to be registered as a citizen of Kenya under either of those subsections, shall be entitled, upon making application
before the specified date in such manner as may be prescribed by or
under an Act of Parliament, to be registered as a citizen of Kenya.
(4) A person who, on 11th December, 1963, is a citizen of the United Kingdom and Colonies or of the Republic of Ireland and is on that day ordinarily and lawfully resident in Kenya (otherwise than under the authority of a pass issued under the Immigration Act as then in force and conferring on him the right to remain in Kenya only temporarily)
shall be entitled, upon making application before the specified date in
such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya:
Provided that a person who has not attained the age of twenty-one years (other than a woman who is or has been married) may not himself make an application under this subsection, but an application may be made on his behalf by his parent or guardian.
shall be entitled, upon making application before the specified date in
such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya:
Provided that a person who has not attained the age of twenty-one years (other than a woman who is or has been married) may not himself make an application under this subsection, but an application may be made on his behalf by his parent or guardian.
Persons born in Kenya after 11th December, 1963, 6 of 1985, s. 2.
Persons born outside Kenya after 11th December, 1963.
Marriage to a Kenyacitizen.
Persons eligible to beregistered as Kenyacitizens.
(6) In this section “the specified date” means -
or such later date as may in any particular case be prescribed by or under an Act of Parliament.
. Every person born in Kenya after 11th December, 1963 shall become a citizen of Kenya if at the date of his birth one of his parents is a citizen of Kenya; except that a person shall not become a citizen of Kenya by virtue of this section if at the date of his birth -
0. A person born outside Kenya after 11th December, 1963 shall become a citizen of Kenya at the date of his birth if at that date his father is a citizen of Kenya.
1. A woman who has been married to a citizen of Kenya shall be entitled, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya.
. (1) A person who, being a Commonwealth citizen or a citizen of a country in Africa to which this subsection applies, has been ordinarily resident in Kenya for such period (whether commencing before, on or after 12th December, 1963) and under such authority as may be prescribed by or under an Act of Parliament shall be eligible, upon making application in such manner as may be so prescribed, to be registered as a citizen of Kenya, and the Minister may cause any such person who so applies to be so registered.
(2) A person shall be eligible, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya if, at the date of his application, one of his parents is a citizen of Kenya, and the Minister may cause any such person who so applies to be so registered:
Provided that a person who has not attained the age of twenty-one years (other than a woman who is or has been married) may not himself make an application under this subsection, but an application may be made on his behalf by his parent or guardian.
(3) The countries in Africa to which subsection (1) of this section applies (other than the countries to which section 95 applies) are countries which are for the time being declared by the Minister, by notice published in the Kenya Gazette, to be countries which permit citizens of Kenya to become citizens of those countries by registration.
. A person who
the Swahili language; and
(f) satisfies the Minister that he intends, if naturalized as a citizen
of Kenya, to continue to reside in Kenya,
shall be eligible, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be naturalized as a citizen of Kenya, and the Minister may
grant a certificate of naturalization to any such person who
so applies.
. (1) The Minister may, by order published in the Kenya Gazette and after such procedure as may be prescribed by or under an Act of Parliament, deprive of his citizenship of Kenya any person who is a citizen by registration or naturalization if the Minister is satisfied -
Persons eligible to benaturalized as Kenyacitizens.
Deprivation ofcitizenship.
(c) that, within the period of five years commencing with
the date of the registration or naturalization, a sentence of imprisonment of or exceeding twelve months has been imposed on that citizen by a court in any country or has been substituted by competent authority for some other sentence imposed on him by such a court; or
of a fine.
. (1) Every person who, under this Constitution or an Act of Parliament, is a citizen of Kenya or who, under any law for the time being in force in a country to which this section applies, is a citizen of that country shall, by virtue of that citizenship, have the status of a Commonwealth citizen.
. (1)Aperson who, upon the attainment of the age of twenty-one years, is a citizen of Kenya and also a citizen of some country other than Kenya shall, subject to subsection (7), cease to be a citizen of Kenya upon the specified date unless he has renounced his citizenship of that other country, taken the oath of allegiance and, in the case of a person who was born outside Kenya, made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament.
(2)* A person who -
(a) has attained the age of twenty-one years before 12th
December, 1963; and
Commonwealth citizens.
Powers of Parliament.
Dual citizenship.
*See note at foot of page 70.
other than Kenya,shall subject to subsection (7), cease to be a citizen of Kenya upon
the specified date unless he has renounced his citizenship of that other
country, taken the oath of allegiance and, in the case of a person who is a citizen of Kenya by virtue of section 87 (2), made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament.
(3) A citizen of Kenya shall, subject to subsection (7), cease to be such a citizen if -
and has not, by the specified date, renounced his citizenship
of that other country, taken the oath of allegiance and made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament.
(4) A person who has attained the age of twenty-one years (or is a woman who is or has been married) and who –
shall, subject to subsection (7), cease to be a citizen of Kenya upon
the specified date unless he has renounced his citizenship of that other
country, taken the oath of allegiance and made and registered such declaration of his intentions concerning residence as may be prescribed by or under an Act of Parliament.
(5) For the purposes of this section, where, under the law of a country other than Kenya, a person cannot renounce his citizenship of that other country, he need not make the renunciation but he may instead be required to make such declaration concerning that citizenship as may be prescribed by or under an Act of Parliament.
(6) In this section “the specified date” means –
or, in the case of a person of unsound mind, such later date as may be prescribed by or under an Act of Parliament.
(7) Provision may be made by or under an Act of Parliament for
extending beyond the specified date the period in which a person may
make a renunciation of citizenship, take an oath or make or register a declaration for the purposes of this section, and, if provision is so made,
that person shall not cease to be a citizen of Kenya upon the specified
date but shall cease to be a citizen upon the expiration of the extended period if he has not then made the renunciation, taken the oath or made or registered the declaration, as the case may be.
. (1) In this Chapter
“the British Nationality Act, 1948” means the Act of that title
enacted by the Parliament of the United Kingdom;
“British protected person” means a person who is a British protected person for the purposes of the British Nationality Act, 1948; and
“the Minister” means the Minister who is for the time being
responsible for matters relating to citizenship of Kenya.
(2) For the purposes of this Chapter, a person born aboard a registered ship or aircraft, or aboard an unregistered ship or aircraft
*See note at foot of page 70.
Interpretation
Consolidated Fund and other funds of the Government of Kenya.
Authorization of expenditure fromConsolidated Fund by appropriation.
of the Government of any country, shall be deemed to have been born in the place in which the ship or aircraft was registered or, as the case may be, in that country.
(3) A reference in this Chapter to the national status of the father of a person at the time of that person’s birth shall, in relation to a person born after the death of his father, be construed as a reference to the national status of the father at the time of the father’s death; and where that death occurred before 12th December, 1963 and the birth occurred after 11th December, 1963 the national status that the father would have had if he had died on 12th December, 1963 shall be deemed to be his national status at the time of his death.
. (1) Subject to subsection (2), all revenues or other moneys raised or received for the purposes of the Government of Kenya shall be paid into and form a Consolidated Fund from which no moneys shall be withdrawn except as may be authorized by this Constitution or by an Act of Parliament (including an Appropriation Act) or by a vote on account passed by the National Assembly under section 101.
(2) Provision may be made by or under an Act of Parliament for any revenues or other moneys received for the purposes of the Government of Kenya to be paid into some public fund (other than the Consolidated Fund) established for a specific purpose, or to be retained by the authority that received them for the purpose of defraying the expenses of that authority, but no moneys shall be withdrawn from any such public fund unless the issue of those moneys has been authorized by or under a law.
100. (1) The Minister for the time being responsible for finance
shall cause to be prepared and laid before the National Assembly in
each financial year estimates of the revenues and expenditure of the Government of Kenya for the next following financial year.
(2) When the estimates of expenditure (other than expenditure charged upon the Consolidated Fund by this Constitution or by any Act of Parliament) have been approved by the National Assembly, a Bill, to be known as an Appropriation Bill, shall be introduced into the Assembly, providing for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums, under separate votes for the several services required, to the purposes specified therein.
(3) If in respect of any financial year it is found -
(a) that the amount appropriated by the Appropriation Act
to any purpose is insufficient or that a need has arisen for
expenditure for a purpose to which no amount has been
appropriated by that Act; or
(b) that any moneys have been expended for a purpose in excess of the amount appropriated to that purpose by the Appropriation Act or for a purpose to which no amount has been appropriated by that Act,
a supplementary estimate or, as the case may be, a statement of excess showing the sums required or spent shall be laid before the National Assembly and, when the supplementary estimate or statement of excess has been approved by the Assembly, a supplementary Appropriation Bill shall be introduced into the Assembly, providing for the issue of those sums from the Consolidated Fund and appropriating them to the
purposes specified therein.
101. If the Appropriation Act for a financial year has not come
into operation, or is not likely to come into operation, by the beginning
of that financial year, the National Assembly may, by a vote on account,
authorize the withdrawal from the Consolidated Fund of moneys (not exceeding in total one-half of the sums included in the estimates of expenditure for that year that have been laid before the Assembly) for the purpose of meeting expenditure necessary to carry on the services of the Government of Kenya during that year until such time as the Appropriation Act comes into operation, but any moneys so withdrawn shall be included, under separate votes for the several services in respect of which they were withdrawn, in the Appropriation Act.
10. (1) Parliament may make provision for the establishment of a Contingencies Fund and for authorizing the Minister for the time being responsible for finance, if he is satisfied that there has arisen an urgent and unforeseen need for expenditure for which no other provision exists, to make advances from that Fund to meet that need.
Authorization of expenditurein advance of appropriation.
Contingencies Fund.
Public debt of Government of Kenya.
Remuneration of
certain officers.
13 of 1977, s. 4.
Controller and Auditor-General.
10. (1) There shall be paid to the holders of the offices to which this section applies such salary and such allowances as may be prescribed by or under an Act of Parliament.
(2) The salaries and any allowances payable to the holders of
the offices to which this section applies shall be charged upon the
Consolidated Fund.
(3) The salary payable to the holder of an office to which this section applies and his other terms of service (other than allowances that are not taken into account in computing, under any law in that behalf, any pension payable in respect of his service in that office) shall not be altered to his disadvantage after his appointment.
10. (1) There shall be a Controller and Auditor-General whose
office shall be an office in the public service.
Consolidated Fund is authorized by law, and, if so satisfied,
to approve the withdrawal;
officers and authorities of that Government, the accounts of
all courts in Kenya (other than courts no part of the expenses of which are defrayed directly out of moneys provided by Parliament), the accounts of every Commission established by this Constitution and the accounts of the Clerk of the National Assembly.
(3) The Controller andAuditor-General and any officer authorized
by him shall have access to all books, records, returns, reports and other documents which in his opinion relate to any of the accounts referred to in subsection (2).
(4) The Controller and Auditor-General shall submit every report made by him in pursuance of subsection (2) to the Minister for the time
being responsible for finance who shall, not later than seven days after the National Assembly first meets after he has received the report, lay
it before the Assembly.
(5) In the exercise of his functions under subsections (2), (3) and (4), the Controller and Auditor-General shall not be subject to the direction or control of any other person or authority.
10. (1) There shall be a Public Service Commission which shall
consist of a chairman, a deputy chairman and fifteen other members.
(2) The members of the Commission shall be appointed by the President.
(3) Subject to subsection (4), a person shall not be qualified to be
appointed as a member of the Commission if -
(a) he is, or has at any time been, a member of the National
Assembly, or he has at any time been a member of either
House of the National Assembly formerly established for
Public Service
Commission.
7 of 1984, s. 4,
4 of 1988, s. 6,
17 of 1990, s. 5.
Kenya, a member of a Provincial Council or a Regional Assembly formerly established for Kenya or a member (other than an ex officio, an appointed or a nominated member) of any Legislative Council established for Kenya at any time before 12th December, 1963; or
(b) he is, or has at any time been, nominated as a candidate for
election as a member of the NationalAssembly, or of a former
House of the National Assembly, or of a former Provincial
Council, Regional Assembly or Legislative Council; or
(c) he is, or has at any time been, the holder of an office in any
political organization that sponsors or otherwise supports, or has at any time sponsored or otherwise supported, a candidate for election as a member of the National Assembly or of any such former House of the National Assembly, former Provincial Council, Regional Assembly or Legislative Council.
(4) The disqualifications referred to in subsection (3) shall cease to be disqualifications in respect of a person when Parliament has been
dissolved on two occasions after that person ceased to be such a member,
candidate or holder of office.
(5) Subject to subsection (7), the office of a member of the
Commission shall become vacant -
(a) at the expiration of three years from the date of his
appointment; or
(b) if he accepts any office the holding of which, if he were not
a member of the Commission, would make him ineligible for
appointment to the office of member of the Commission.
(6) The President may remove a member of the Commission from
office only for failure to discharge the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for
misbehaviour, and shall not be so removed except in accordance with this section.
(7) A member of the Commission shall be removed from office by the President if the question of his removal from office has been
referred to a tribunal appointed under subsection (8) and the tribunal has recommended to the President that he ought to be removed from
office for inability as aforesaid or for misbehaviour.
(8) If the President considers that the question of removing a
member of the Commission under this section ought to be investigated, then -
(a) the President shall appoint a tribunal which shall consist of a chairman and four other members selected by the President from among persons -
(i) who hold or have held office as judge of the High Court
or judge of appeal; or
(ii) who are qualified to be appointed as judges of the High
Court under section 61 (3); or
(iii) upon whom the rank of Senior Counsel has been conferred by the President under section 17 of the Advocates Act; and
(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to him whether the member ought to be removed under this section.
(9) If the question of removing a member of the Commission has been referred to a tribunal under this section, the President may suspend that member from the exercise of the functions of his office and the suspension may at any time be revoked by the President, and shall in any case cease to have effect if the tribunal recommends to the President that the member should not be removed.
(10) If the office of chairman of the Commission is vacant or
the chairman is for any reason unable to exercise the functions of his
office, then, until a person has been appointed to and has assumed the functions of that office or until the person holding that office has
resumed those functions, as the case may be, the deputy chairman or,
if the office of deputy chairman is vacant or the deputy chairman is for any reason unable to perform the functions of the office of chairman,
such one of the other members as the President may appoint shall act as chairman; and the deputy chairman or the other member shall, subject to subsections (5), (7) and (9), continue to act until a person has been
appointed to the office of chairman and has assumed the functions of that office or, as the case may be, until the person in whose place he is
acting has assumed or resumed those functions.
(11) If the office of a member of the Commission other than the
chairman is vacant or if such a member is acting as chairman under subsection (10) or is for any other reason unable to exercise the functions
of his office, the President may appoint a person who is qualified to be
appointed to be a member to act in place of that member; and a person
Cap. 16. Appointment, etc., of
public officers.
7 of 1982, s.8,7 of 1984, s.5.
so appointed shall, subject to subsection (5), (7) and (9), continue to act
until a person has been appointed to the office in which he is acting and has assumed the functions of that office or, as the case may be, until the
person in whose place he is acting has resumed those functions.
Provided that any decision of the Commission shall require the concurrence of a majority of all the members thereof.
10. (1) Subject to this Constitution, the power to appoint persons to hold or act in offices in the public service and in the service of local authorities (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in those offices and the power to remove those persons from office shall vest in the Public Service Commission:
Provided that the Commission may, with the approval of the
President and subject to such conditions as it thinks fit, by directions
in writing, delegate any of its powers under this section to any one or
more of its members or to any officer in the public service or, in the
case of appointments to the service of local authorities, to particular local authorities.
(2) Subject to this section and section 106 (12), provision may be made by or under an Act of Parliament for prescribing the manner of the exercise of the functions of the Public Service Commission under this section and for any matters incidental or supplementary to the exercise of those functions.
act in an office on the personal staff of the President except with the
concurrence of the President.
following offices in the public service -
(a) the office of the judge of the High Court or the Court of
Appeal;
(d) so far as relates to appointments thereto or to act therein,
the office of Permanent Secretary, Secretary to the Cabinet,
Director of Personnel or Commissioner of Police;
(e) the office of Ambassador, High Commissioner or other
principal representative of Kenya in another country.
(f) an office to which section 69 (which relates to offices
within the jurisdiction of the Judicial Service Commission) applies; or
(g) an office in the Kenya Police Force to which section 108
(2) (b) applies.
10. (1) The power to appoint a person to hold or act in the
office of Commissioner of Police shall vest in the President.
Inspector, or such rank other than the rank of Assistant
Inspector as may be specified for the purposes of this section
by or under an Act of Parliament, in the Public Service Commission;
(b) in the case of offices below the rank of Assistant Inspector,
or such other rank as may be specified as aforesaid, in the
Commissioner of Police:
Provided that -
(i) the Commission may, by directions in writing and subject
to such conditions as it thinks fit, delegate any of its
Appointment, etc., ofmembers of KenyaPolice Force.
Attorney-General.14 of 1986, s.4,17 of 1990, s.6.
Cap. 16 (1986).
powers under this section to any one or more members
of the Commission or to the Commissioner;
(ii) the Commissioner may, by directions given in such
manner as he thinks fit and subject to such conditions as
he thinks fit, delegate any of his powers under this section
to any member of the Kenya Police Force.
10. (1) The Attorney-General shall be appointed by the President.
(2) If the office of Attorney-General is vacant or if the Attorney-General is for any reason unable to exercise the functions of his office, the President may appoint a person to act as Attorney-General, and a person so appointed shall, subject to subsections (4), (6) and (8), continue to act until a person has been appointed to the office of Attorney-General and has assumed the functions of that office or, as the case may be, until the person in whose place he is acting has resumed those functions.
(3) A person shall not be qualified to be appointed to hold or to act in the office of Attorney-General unless he holds and has held for a total period of not less than five years one or other of the qualifications specified in paragraphs (a), (b), (c) and (d) of section 12 (1) of the Advocates Act as in force on 12th December, 1963.
(4) Subject to subsection (6), theAttorney-General shall vacate his
office when he attains such age as may be prescribed by Parliament.
(5) The Attorney-General may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and shall not be removed except in accordance with this section.
(6) The Attorney-General shall be removed from office by the President if the question of his removal from office has been referred to a tribunal appointed under subsection (7) and the tribunal has recommended to the President that he ought to be removed for inability as aforesaid or for misbehaviour.
(7) If the President considers that the question of removing the Attorney-General under this section ought to be investigated, then
(a) the President shall appoint a tribunal which shall consist of a chairman and four other members selected by the President from among persons -
(i) who hold or have held office as judge of the High Court
or judge of appeal; or
(ii) who are qualified to be appointed as judges of the High
Court under section 61 (13); or
(iii) upon whom the rank of Senior Counsel has beenconferred by the President under section 17 of the Advocates Act; and
(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to him whether the Attorney-General ought to be removed under this section.
(8) If the question of removing the Attorney-General has been referred to a tribunal under this section, the President may suspend the Attorney-General from the exercise of the functions of his office and any such suspension may at any time be revoked by the President, and shall in any case cease to have effect if the tribunal recommends to the President that the Attorney-General should not be removed.
110. (1) The Controller and Auditor-General shall be appointed by the President.
(2) If the office of Controller and Auditor-General is vacant or if
the Controller and Auditor-General is for any reason unable to exercise
the functions of his office, the President may appoint a person to act
as Controller and Auditor-General, and a person so appointed shall, subject to subsections (3), (5) and (7) continue to act until a person has
been appointed to the office of Controller and Auditor-General and has assumed the functions of that office or, as the case may be, until the
person in whose place he is acting has resumed those functions.
(3) Subject to subsection (5), the Controller and Auditor-General
shall vacate his office when he attains such age as may be prescribed
by Parliament.
(4) A person holding the office of Controller and Auditor-General may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and shall not be so removed except in accordance with this section.
Cap. 16.
Controller and Auditor-General. 14 of 1986, s. 5,17 of 1990, s. 6.
(5) The Controller and Auditor-General shall be removed from
office by the President if the question of his removal from office has been
referred to a tribunal appointed under subsection (6) and the tribunal has
Cap. 16.
Appointmentof Permanent Secretaries,Ambassadors, etc.7 of 1982, s. 8,14 of 1986, s. 6.
recommended to the President that he ought to be removed for inability as aforesaid or for misbehaviour.
(6) If the President considers that the question of removing the Controller and Auditor-General under this section ought to be investigated, then -
(a) the President shall appoint a tribunal which shall consist of
a chairman and four other members selected by the President
from among persons -
(i) who hold or have held office as judges of the High Court
or judges of appeal; or
(ii) who are qualified to be appointed as judges of the High
Court under section 61 (3); or
(iii) upon whom the rank of Senior Counsel has been conferred by the President under section 17 of the Advocates Act; and
(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to him whether the Controller and Auditor-General ought to be removed under this section.
(7) If the question of removing the Controller andAuditor-General has been referred to a tribunal under this section, the President may suspend the Controller and Auditor-General from the exercise of the functions of his office and any such suspension may at any time be revoked by the President, and shall in any case cease to have effect if the tribunal recommends to the President that the Controller and Auditor-General should not be removed.
111. (1) The power to appoint a person to hold or act in the office of Permanent Secretary, Secretary to the Cabinet or Director of Personnel shall vest in the President.
(2) The power to appoint a person to hold or act in the office of
Ambassador, High Commissioner or other principal representative of
Kenya in another country, and to remove from office a person holding or acting in any such office, shall vest in the President:
Provided that before exercising a power conferred by this
subsection in relation to a person who holds an office in the public service, other than an office to which this subsection applies, the
President shall consult the Public Service Commission.
11. (1) The law to be applied with respect to pensions benefits
that were granted to a person before 12th December, 1963 shall be the law
that was in force at the date on which those benefits were granted or any
law in force at a later date that is not less favourable to that person.
December, 1963, be the law that was in force on 11th December, 1963; and
(b) in so far as those benefits are wholly or partly in respect of
a period of service as a public officer that commenced after
11th December, 1963, be the law in force on the date on which that period of service commenced,
or any law in force at a later date that is not less favourable to that person.
(3) Where a person is entitled to exercise an option as to which of two or more laws shall apply in this case, the law for which he opts shall, for the purposes of this section, be deemed to be more favourable to him than the other law or laws.
(4) All pensions benefits shall (except to the extent to which, in the case of benefits under the Provident Fund Act, the Widows’ and
Orphans’ Pensions Act, the Asian Widows’ and Orphans’ Pensions Act
andtheAsian Officers’FamilyPensionsActorunderanylawamending
or replacing any of those Acts, they are a charge on a fund established by any of those Acts or by any such law and have been duly paid out of that fund to the person or authority to whom payment is due) be charged upon the Consolidated Fund.
(6) A person who is entitled to the payment of pensions benefits
and who is ordinarily resident outside Kenya may, within a reasonable time after he has received that payment, remit the whole of it (free from
Pensions laws and protection ofpensions rights.
Cap. 191,Cap. 192.Cap. 193.Cap. 194.
any deduction, charge or tax made or levied in respect of its remission) to any country of his choice outside Kenya:
Provided that nothing in this subsection shall be construed as preventing -
(i) the attachment, by order of a court, of a payment or part of a payment to which a person is entitled in satisfaction of the judgment of a court or pending the determination of civil proceedings to which he is a party to the extent to which that attachment is permitted by the law with
respect to pensions benefits that applies in the case of
that person; or
(ii) the imposition of reasonable restrictions as to the manner in which a payment is to be remitted.
(7) In this section “pensions benefits” means any pensions,
compensation, gratuities or other like allowances for persons in respect
of their service as public officers or for the widows, children, dependants
or personal representatives of those persons in respect of that service.
(8) References in this section to the law with respect to pensions
benefits include (without prejudice to their generality) references to the law regulating the circumstances in which those benefits may be granted or in which the grant of those benefits may be refused, the law regulating the circumstances in which any such benefits that have been
granted may be withheld, reduced in amount or suspended and the law
regulating the amount of any such benefits.
(9) For the purposes of this section -
(a) an office in any naval, military or air force established by
or under any law made by a legislature in Kenya;
(b) to the extent to which pensions benefits in respect of service
in such an office are payable under any of the Acts referred
to in subsection (4) or under any law amending or replacing
any of those Acts, an office in the service of the East Africa
High Commission, the East African Common Services Organization or the East African Community; and
(c) an office in the service of any of the following bodies (which
are bodies that are no longer in existence but in respect of former service in which pensions are payable out of Kenya funds) -
(iii) the Customs Department (Kenya and Uganda);
(vii) the Northern Brigade, King’s African Rifles;
(viii) the Zanzibar Branch Audit Office;
shall be regarded as an office in the public service.
11. (1) Where under any law a person or authority has a Power to withhold
pensions, etc.
discretion-
granted; or
that have been granted,
Interpretation ofChapter.
Cap. 288.
those benefits shall be granted and may not be withheld, reduced in
amount or suspended unless the Public Service Commission concurs in
the refusal to grant the benefits or, as the case may be, in the decision
to withhold them, reduce them in amount or suspend them.
(2) Where the amount of any pensions benefits that may be granted to a person is not fixed by law, the amount of the benefits to be granted
to him shall be the greatest amount for which he is eligible unless the
Public Service Commission concurs in his being granted benefits of a
smaller amount.
(3) The Public Service Commission shall not concur under subsection (1) or subsection (2) in any action taken on the ground
that a person who holds or has held the office of judge of the High
Court, judge of any Court of Appeal exercising jurisdiction in Kenya, Attorney-General or Controller and Auditor-General has been guilty of
misbehaviour in that office unless he has been removed from that office
by reason of his misbehaviour.
(4) Before the Public Service Commission concurs under subsection (1) or subsection (2) in any action taken on the ground
that a person who holds or has held any office to which, at the time of
the action, section 69 applies has been guilty of misbehaviour in that
office, the Public Service Commission shall consult the Judicial Service
Commission.
(5) In this section “pensions benefits” means any pensions,
compensation, gratuities or other similar allowances for persons in
respect of their service as public officers or for the widows, children,
dependants or personal representatives of those persons in respect of that service.
(6) For the purposes of this section an office shall be regarded as an office in the public service that is by virtue of section 112 (9) regarded as an office in the public service for the purposes of that section.
11. (1) Subject to this Chapter, the following descriptions of land are Trust land -
(a) land which is in the Special Areas (meaning the areas of
land the boundaries of which were specified in the First
Schedule to the Trust LandAct as in force on 31st May, 1963), and which was on 31st May, 1963 vested in the Trust Land Board by virtue of any law or registered in the name of the Trust Land Board;
Provided that Trust land does not include any estates, interests or rights in or over land situated in the Nairobi Area (as it was on 12th December, 1964) that on 31st May, 1963 were registered in the name of the Trust Land Board under the former Land Registration (Special Areas) Ordinance.
(2) In this Chapter, references to a county council shall, in relation to land within the areas of jurisdiction of the Taveta Area Council, the PokotArea Council, the MosopArea Council, the TinderetArea Council, the ElgeyoArea Council, the MarakwetArea Council, the Baringo Area Council, the Olenguruone Local Council, the Mukogodo Area Council, the Elgon Local Council, and the Kuria Local Council, be construed as references to those councils respectively.
11. (1) All Trust land shall vest in the county council within whose area of jurisdiction it is situated:
Provided that there shall not vest in any county council by virtue of this subsection -
Cap. 280.
Trust land to vest in county councils.
Registration ofindividual titles to Trust land.
Cap. 283,Cap. 284.
Setting apart of Trust land by Countycouncils.
the benefit of the persons ordinarily resident on that land and shall give effect to such rights, interests or other benefits in respect of the land as
may, under the African customary law for the time being in force and applicable thereto, be vested in any tribe, group, family or individual:
Provided that no right, interest or other benefit under African customary law shall have effect for the purposes of this subsection so far as it is repugnant to any written law.
11. (1) A county council may, in such manner and subject to such conditions as may be prescribed by or under an Act of Parliament, request that any law to which this subsection applies shall apply to an area of Trust land vested in that county council, and when the title to any parcel of land within that area is registered under any such law otherwise than in the name of the county council it shall cease to be Trust land.
11. (1) Subject to this section, an Act of Parliament may empower a county council to set apart an area of Trust land vested in that county council for use and occupation -
opinion of that county council is likely to benefit the persons
ordinarily resident in that area or any other area of Trust land vested in that county council, either by reason of the use to which the area so set apart is to be put or by reason of the revenue to be derived from rent in respect thereof,
and the Act of Parliament may prescribe the manner in which and the conditions subject to which such setting apart shall be effected.
(2) Where a county council has set apart an area of land in
pursuance of this section, any rights, interests or other benefits in respect
of that land that were previously vested in a tribe, group, family or individual under African customary law shall be extinguished.
(5) No right, interest or other benefit under African customary
law shall have effect for the purposes of subsection (4) so far as it is repugnant to any written law.
11. (1) Where the President is satisfied that the use and occupation of an area of Trust land is required for any of the purposes
Setting apart of Trust land for purposes ofGovernment, etc.
specified in subsection (2), he may, after consultation with the county
council in which the land is vested, give written notice to that county council that the land is required to be set apart for use and occupation for those purposes; and the land shall then be set apart accordingly and there shall be vested in the Government of Kenya or in such other
person or authority referred to in subsection (2) as may be specified in
the written notice, such estates, interests or rights in or over that land
or any part of it as may be specified in the written notice.
(4) Where land is set apart under this section -
(a) any rights, interests or other benefits in respect of that
land that were previously vested in any tribe, group, family or individual under African customary law shall be extinguished; and
in which and the conditions subject to which a setting apart under this section shall be effected.
11. Where the President is satisfied that any land that has been
set apart under section 118 is no longer required for any of the purposes
specified in that section, the President shall in writing so notify the
county council in whose area of jurisdiction the land is situated, and thereupon the setting apart shall cease to have effect and any estate, interest or right vested in any person or authority in consequence of the setting apart shall be extinguished and (without prejudice to the subsequent making of a further setting apart under any provision of this Chapter) the land shall again be held by the county council in accordance with section 115:
Provided that, where an estate, interest or right that is vested in a person or authority other than the Government of Kenya is extinguished in pursuance of this section, section 75 (except paragraphs (a) and (b) of subsection (1) thereof) shall apply to that extinguishment as if it were a compulsory acquisition by the Government of Kenya under an Act of Parliament of the estate, interest or right so extinguished.
10. (1) Where a person in whom there is vested an estate, interest or right in or over land to which this section applies dies intestate and without heirs, that estate, interest or right shall escheat to the county council in whose area of jurisdiction the land is situated.
(2) Where a company in which there is vested any estate, interest or right in or over land and to which this section applies is dissolved, then, except so far as provision is made by the law relating to companies for the vesting of that estate, interest or right in some other person or authority, it shall escheat as if it were vested in a person who dies intestate and without heirs.
(3) The land to which this section applies is the land, other than land that is situated in the Nairobi Area (as it was on 12th December, 1964), that is specified in paragraphs (a), (b) and (c) of section 114 (1).
11. (1) A person who is appointed, elected or otherwise selected to an office established by or under this Constitution may resign from that office by writing under his hand addressed to the person or authority
by whom he was appointed, elected or otherwise selected:
Land no longerrequired for purposesof Government, etc.
Escheat of rights informer Trust land.
Resignations.
Provided that
Reappointments
and concurrent
appointments
Interpretation.
7 of 1982, s. 9,
7 of 1984, s. 6,
12 of 1991, s. 7,
6 o f 1992, s. 11.
(i) the resignation of a person from the office of President
shall be addressed to the National Assembly;
(ii) the resignation of a person from the office of Speaker
or Deputy Speaker of the National Assembly shall be
addressed to the Assembly;
(iii) the resignation of a person from the office of member of the National Assembly or from the office of chairman or
member of a committee of the National Assembly shall
be addressed to the Speaker of the Assembly.
(2) The resignation of a person from an office as aforesaid shall take effect when the writing signifying the resignation is received by the person or authority to whom it is addressed or a person authorized by that person or authority to receive it.
1. (1) Where a person has vacated an office established by or under this Constitution, he may, if qualified, again be appointed, elected or otherwise selected to hold that office in accordance with this Constitution.
(2) Where this Constitution vests in a person or authority the power to make an appointment to an office (other than the office of Vice-President or Minister), a person may be appointed to that office, notwithstanding that some other person may be holding that office, when that other person is on leave of absence pending the relinquishment of the office; and where two or more persons are holding the same office by reason of an appointment made in pursuance of this subsection, then, for the purposes of any function conferred upon the holder of that office, the person last appointed shall be deemed to be the sole holder of the office.
1. (1) In this Constitution, unless the context otherwise requires-
“the Commonwealth” means Kenya, a country to which section
95 applies and a dependency of any such country;
“district” means one of the districts into which Kenya is divided
in the manner prescribed by an Act of Parliament;
“the East African Community” means the East African Community established by Article I of the Treaty for East African Co-operation signed on 6th June, 1967, and includes the corporations
specified in Article 71 of that Treaty and the East African Development
Bank established by Article 21 of that Treaty;
“financial year” means the period of twelve months ending on
30th June or on such other day as Parliament may prescribe;
“Kenya” means the territory comprised in Kenya on 12th
December, 1963 and the territorial waters of Kenya as for the time
being defined by an Act of Parliament;
“local authority” means a municipal, county, town or urban council, or a council for any other area, established by or under an Act of Parliament;
“oath” includes affirmation;
“the oath of allegiance” means an oath of allegiance as may be
prescribed by Parliament;
“person” includes a body of persons corporate or
unincorporate;
“political party” means a political party which is duly registered under any law which requires political parties to be registered, and which has complied with the requirements of any law as to the constitution or rules of political parties nominating candidates for the National Assembly;
“province” means one of the provinces into which Kenya is
divided in the manner prescribed by an Act of Parliament;
“public officer” means a person holding or acting in an office in
the public service;
“the public service” includes the public service at any time before
12th December, 1963;
“session” means the period beginning when the NationalAssembly first sits after 11th December, 1963 or after Parliament is prorogued or dissolved at any time and ending when Parliament is prorogued or is dissolved without having been prorogued;
“sitting” means, in relation to the National Assembly, a period
during which the Assembly is sitting without adjournment and includes any period during which it is in committee;
“subordinate court” means a court of law in Kenya other than -
“writing” includes printing and any other mode of reproducing
words in a visible form.
(2) Except where the context otherwise requires, any powers conferred upon Parliament by this Constitution to establish, provide for or prescribe any matter or thing shall be exercisable by Act of Parliament.
(3) For the purposes of this Constitution, a person shall not be
regarded as holding an office by reason only of the fact that he is in
receipt of a pension or other similar allowance.
(4) In this Constitution, unless the context otherwise requires, a
reference to the holder of an office by the term designating his office
shall be construed as including, to the extent of his authority, a reference to any person for the time being authorized to exercise the functions
of that office.
(5) Where this Constitution confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion arises.
(6) Subject to this Constitution, any provision in this Constitution that vests in a person or authority the power to remove a public officer from his office shall be without prejudice to the power of a person or authority to abolish an office or to any law providing for the compulsory retirement of public officers generally or any class of public officers on attaining an age specified therein.
(7) Where this Constitution vests in a person or authority the power to appoint a person to act in or to exercise the functions of an
office if the holder thereof is himself unable to exercise those functions,
no such appointment shall be called in question on the grounds that the
holder of the office was not unable to exercise those functions.
(8) No provision of this Constitution that a person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions under this Constitution shall be construed as precluding a court from exercising jurisdiction in relation to any question whether that person or authority has exercised those functions in accordance with this Constitution or any other law.
(13) A reference in this Constitution to a law that amends or replaces another law shall be construed as including a reference to a law that modifies, re-enacts, with or without amendment or modification, or makes different provision in place of that other law.
1. This Chapter shall have effect notwithstanding the foregoing provisions of this Constitution, and accordingly, if any such provision is inconsistent with a provision of this Chapter, the provision of this Chapter shall prevail.
1. (1) This section shall have effect for the purpose of enabling
an officer to whom this section applies or his personal representatives
to appeal against any of the following decisions
(a) a decision of the Public Service Commission to give such concurrence as is required by section 113 (1) or (2) in relation to the refusal, withholding, reduction in amount or
Effect of Chapter.
Appeals in respectof certain decisions affecting pensions
benefits.
suspending of any pensions benefits in respect of such an officer’s service as a public officer;
(b) a decision, whether of a Commission established by this
Constitution or some other person or authority, to remove
such an officer from office if the consequence of the removal is that any pensions benefits cannot be granted in respect of the officer’s service as a public officer; or
(c) a decision, whether of a Commission established by this
Constitution or some other person or authority, to take
some other disciplinary action in relation to such an officer
if the consequence of the action is, or in the opinion of the Commission or other person or authority taking the decision
might be, to reduce the amount of any pensions benefits that may be granted in respect of the officer’s service as a public officer.
(2) In the following provisions of this section, references to the Commission shall be construed -
(3) The Commission shall cause to be delivered to the officer
concerned, or to his personal representatives, a written notice of a decision referred to in subsection (1), stating the time, not being less than fourteen days from the date on which the notice is delivered, within which he, or his personal representatives, may apply to the Commission for the case to be referred to an Appeals Board.
(4) If application is duly made within the time stated in the notice, the Commission shall notify the President in writing of that application and thereupon the President shall appoint an Appeals Board consisting of-
public officers or by a professional body, nominated in either
case by the applicant; and
affirmed, reversed or modified and the Commission shall act
in accordance with that advice; and
(b) if the decision that is the subject of the reference to the Board is a decision referred to in subsection (1) (b) or (c), the Board shall not have power to advise the Commission
to affirm, reverse or modify the decision but
(i) where the officer has been removed from office the Board
may direct that there shall be granted all or any part of
the pensions benefits that, under any law, might have been granted in respect of his service as a public officer
if he had retired voluntarily at the date of his removal and may direct that any law with respect to pensions
benefits shall in any other respect have effect as if he
had so retired; and
Compulsoryretirement to facilitate appointmentof local candidates
(ii) where some other disciplinary action has been taken
in relation to the officer the Board may direct that there
shall be adopted with respect to the calculation of any
pensions benefits that, under any law, may be granted in
respect of his service as a public officer such measures
as the Board may specify in order to off-set all or any
part of the reduction in the amount of the benefits that,
in the opinion of the Board, would or might otherwise
be a consequence of the disciplinary action,
and any direction given by the Board under this paragraph
shall be complied with notwithstanding the provisions of
any other law.
(7) In this section the expression “pensions benefits” has the
meaning assigned to it in section 113.
(8) This section applies to an officer who holds a pensionable office in the public service and-
1. (1) If the President so requests, the authorities having power to make appointments in any branch of the public service shall consider and report to the President whether there are more candidates belonging to Kenya (hereinafter referred to as “local candidates”) who are suitably qualified for appointment to, or promotion in, that branch than there are vacancies in that branch that could appropriately be filled by the local candidates; if those authorities report to the President that such is the case, the authority having power to remove from office persons holding office in that branch (in this subsection and in subsection (2) referred to as “the nominating authority”) shall, if so requested by the President, select officers to whom this section applies who are serving in that branch and whose retirement would, in the opinion of the nominating authority, cause vacancies that could appropriately be filled by such suitably qualified local candidates as are available and fit for appointment and inform the President of the number of officers so selected; if the President specifies a number of officers to be called upon to vacate their appointments (not exceeding the number of officers
so selected), the nominating authority shall nominate that number of
officers from among the officers so selected and the provisions of subsections (2), (3), and (4) shall apply in the case of any officer so
nominated.
(2) The nominating authority shall report the name of the officer
to the chairman of the Public Service Commission who in turn shall circulate that name to the authority having power to make appointments
in any branch of the public service in which the officer is eligible for
appointment; and each such authority shall then consider whether there
is any vacancy to which it is willing to appoint the officer.
(3) If an authority indicates to the chairman of the Public Service
Commission that it is willing to appoint the officer to fill a vacancy the officer shall be so informed and that appointment shall be made, but without prejudice to the right of the officer to retire voluntarily from
the public service in the manner provided by any law:
Provided that where more than one authority is willing to appoint
the officer to fill a vacancy, the Public Service Commission shall decide which vacancy he shall be appointed to fill.
(4) If no authority is willing to appoint the officer to fill a vacancy,
the chairman of the Public Service Commission, shall by notice in writing so inform him and require him to retire from the public service, and he shall retire accordingly.
(5) A notice given under subsection (4) requiring an officer to
retire from the public service shall-
(a) in the case of an officer who, when he receives the notice,
is on leave of absence upon the completion of a tour of duty, specify the date on which he shall so retire which shall be not earlier than the expiration of six months from the date when he receives the notice or, if his leave of absence would otherwise expire later, when it would otherwise expire; and
(b) in the case of any other officer, specify the period, which
shall be not less than six months from the date when he receives the notice, at the expiration of which he shall proceed upon leave of absence pending retirement:
Provided that the officer may agree to the notice specifying an
earlier date or, as the case may be, a shorter period.
(6) In determining the date or the period to be specified in pursuance of subsection (5) in a notice given to an officer, the chairman
of the Public Service Commission shall act in accordance with the advice
of the authority that nominated that officer under subsection (1).
(7) This section applies to an officer who holds a pensionable office in the public service and -
(d) is an overseas officer who, after 11th December, 1963, is appointed to any office in the public service (otherwise than on promotion or transfer from another such office) and who is notified at the time of his appointment that this section
will apply to him.
(8) In this section “overseas officer” means an officer in the public
service who is, either individually or as a member of a class, declared
by the appropriate Commission to be an overseas officer, and “the appropriate Commission” means -
(a) in relation to an officer who can be removed from his office
by the Judicial Service Commission, that Commission; and
(b) in any other case, the Public Service Commission.
North-Eastern
Province and 1. (Repealed by 6 of 1992, s. 12).
contiguous Districts.
6 of 1992, s. 12.
These are of temporary duration and are not reproduced here.
Rules under section ()
These apply to the Land Acquisition Act (Cap. 295) and are included in that Chapter.
orders under section (1)
THE consTiTuTion (PuBLic sEcuRiTY) oRdER
1. This Order may be cited as the Constitution (Public Security) Order.
L.N. 222/1978,
2. The following provisions of Part III of the Preservation of
Cap. 57.
Public Security Act are brought into operation generally, namely
10 of 1997.
subsection (1) of section 4 so far as it relates to the matters specified in
paragraph (b) of subsection (2) of that section.
Ln no of 00
Citation.
Originating notice ofmotion.
Form of Motion.
Content of Motion.
Motion to be placedbefore judge.
Court may move onits own motion.
Reference to the High Court bysubordinate court on its own
IN EXERCISE of the powers conferred by section 65(3) and section 84(6) of the Constitution of Kenya, the Chief Justice makes the following Rules:
1. These Rules may be cited as the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006.
part I - supervIsory JurIsdICtIon
2. Unless a matter is specifically provided for under section 67 or section 84 of the Constitution or any other law, a party who wishes to invoke the jurisdiction of the High Court under section 65 of the Constitution, shall do so by way of Originating Notice of Motion (hereinafter referred to as “the Motion”)
3. The Motion shall be as set out in Form A in the Schedule to these Rules.
4. The Motion shall state the concise grounds for the application,
and shall be supported by the applicant’s affidavit.
5. Upon the filing of the Motion, the Registrar shall place the
motion before a judge for directions within seven days from the date
of filing.
6. The High Court may in exercise of the powers conferred by Section 65(2) of the Constitution move on its own motion.
part II: InterpretatIve JurIsdICtIon
7. Where a question as to the interpretation of the Constitution arises in proceedings in a subordinate court and the court is of the opinion that the question involves a substantial question of law, the court may refer the question to the High Court in Form B set out in the Schedule to these rules.
8. Where a party to proceedings in a subordinate court alleges that there is a question as to the interpretation of the Constitution and the court is of the opinion that it involves a substantial question of law, the party shall informally request the presiding officer of that court to refer the question to the High Court and the court shall do so in Form c in the Schedule to these rules.
part III - enforCement JurIsdICtIon
11. Where contravention of any fundamental rights and freedoms of an individual under sections 70 to 83 (inclusive) of the Constitution is alleged or is apprehended an application shall be made directly to the High Court.
12.An application under rule 11 shall be made by way of a petition as set out in Form d in the Schedule to these Rules.
13. The petition under rule 12 shall be supported by an
affidavit.
14. If a party wishes to rely on any document, the document shall
be annexed to the supporting affidavit.
15. The petition shall, in a criminal case, be served on the Attorney-General and in a civil case, on the respondent, within seven days of filing.
16. The Attorney-General or the respondent, as the case may be, shall within fourteen days of service of the petition, respond by way of a replying affidavit and if any document is relied upon, it shall be annexed to the replying affidavit.
17. A petitioner who wishes to file a further affidavit shall do so within seven days of service of the replying affidavit.
motion.
Reference to the High Court bysubordinate court upon request byparties.
Subordinate court to state issues and its opinion.
Registrar to placereference before Chief Justice or judge.
Contravention of fundamental rightsand freedoms.
Form of petition.
Petition to be supported by
affidavit.
Documents to be
annexed to affidavit.
Petition to be served.
Replying affidavit.
Further affidavit.
Fixing Petition forhearing by the court.
Written submissions.
Fixing Petition forhearing by petitioner.
Conservatory orinterim Orders.
Application to be bychamber summons.
Setting aside.
Constitutional issues in a matter before the High Court
Reference to the High Court bysubordinate court on its own motion
Informal applicationto the presiding
officer.
Court to frame question.
18. (1) Within seven days from the date of service of the response or further affidavit, whichever is the later, the Registrar shall place the matter before a judge for fixing a hearing date or directions.
(2) The Judge may in giving directions require that parties file
and serve written submissions.
24. Where in proceedings in a subordinate court a question arises as to the contravention of any of the provisions of sections 70 to 83 (inclusive) of the Constitution, and the presiding officer is of the opinion that the question raised is not frivolous or vexatious, he may refer the question to the High Court in Form E set out in the Schedule to these Rules.
25. Where a party to proceedings in a subordinate court alleges contravention of his fundamental rights or freedoms under sections 70 to 83 (inclusive) of the Constitution in relation to himself, he shall apply informally to the presiding officer during the pendency of the proceedings that a reference be made to the High Court to determine the question of the alleged violation.
26. If the presiding officer is satisfied that there is merit in the allegation made under rule 24, and that it has not been made frivolously or vexatiously, he shall grant the application whereupon the court shall frame the question to be determined by the High Court in Form F set out in the Schedule to these Rules.
27.Assoonasispracticable,andinanycasenotlaterthan twenty one days from the date of framing the question, the subordinate court shall refer the matter to the High Court.
28. The Registrar shall within seven days of receipt of the
reference under rule 25 place the matter before a judge to fix a hearing
date or give further directions.
(2) Any party affected by the operation of Legal Notice No. 133 of 2001 shall be at liberty to apply to the High Court.
Made on the 16th February, 2006. J.E.Gicheru.
Chief Justice
Subordinate court to refer matter to HighCourt.
Registrar to placematter before judge.
Stay of proceedings.
Question fordetermination.
Authorities for the hearing
Applications andreferences to be given priority.
Stay pending appeal.
Court of Appeal Rules to apply.
Revocation of L.N. 133 of 2001.
Transitional Provisions.
(r.3.) SCHEDULE
Form A
IN THE HIGH COURT OF KENYA AT .............................
CONSTITUTIONAL APPLICATION NO. ...... OF ............
In the matter of an applICatIon under seCtIon 65
BETWEEN
A.B. (insert names of parties) ................... APPLICANTAND
C.D. (insert names of parties) .................RESPONDENT
ORIGINATING NOTICE OF MOTION
TAKE NOTICE that on the ......... day of ...... 20.......at ....
O’clock in the forenoon or so soon thereafter as can be heard, the aboveapplicant/counsel for the applicant will move the Court for anOrder that .................. ................................................................. ................................................................................................... State the concise grounds............................................................. .................................................................................................... The application is supported by the annexed affidavit of
.............
sworn on the ...............day of .....................20......
The address for service of the applicant is...................................
DATED this ......................day of ..................................20........
SIGNED .......................................Applicant/Advocate for applicant
DRAWN AND FILED BY:
TO BE SERVED UPON:
Form B
Constitution of Kenya | 11 |
Ln no of 00 | |
IN THE HIGH COURT OF KENYA AT ............................. CONSTITUTIONAL REFERENCE NO. ...... OF ............ | (r. 7) |
IN THE MATTER OF SECTION 67
In the matter of CrImInal/CIvIl Case no .......... of........
AT .......................COURT BETWEEN
A.B. (insert names of parties) .................. APPLICANTAND
C.D. (insert names of parties) .................RESPONDENT To: The High Court of Kenya; Question(s) for Interpretation of the Constitution by the High Court
pursuant to Section 67 of the Constitution.
DATED this ......................day of ..................................20........
Magistrate/Presiding Officer
(r. 8)
Form C
IN THE HIGH COURT OF KENYA AT .............................
CONSTITUTIONAL REFERENCE NO. ...... OF ............
IN THE MATTER OF SECTION 67
In the matter of CrImInal/CIvIl Case no .......... of........
AT .......................COURT
BETWEEN
A.B. (insert names of parties) ................... APPLICANTAND
C.D. (insert names of parties) .................RESPONDENT
To: The High Court of Kenya;
Question(s) for Interpretation of the Constitution by the High Court pursuant to Section 67(1) of the Constitution.
consecutive paragraphs the specific issues contended by
each of the parties referring where necessary to Acts or decided cases.) ........
DATED this ......................day of ..................................20........
Magistrate/Presiding Officer
Form D (r. 12)
IN THE HIGH COURT OF KENYA AT .............................
PETITION NO. ...... OF .....................20.....
IN THE MATTER OF SECTION 84(1)
IN THE MATTER OF ALLEGED CONTRAVENTION OF
FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION (insert section) ............................................
BETWEEN
A.B. (insert names of parties) ................... PETITIONER
AND
C.D. (insert names of parties) .................RESPONDENT
TO:
The High Court of Kenya
The humble petition of A.B (insert names of petitioner) of ...........
in the Republic of Kenya is as follows- ..........................................
............................. (the allegations upon which the petitioner(s)
rely must be concisely set out, in consecutively numbered
paragraphs) ................................................................................
Your Petitioner(s) therefore humbly pray(s) that .........................
(set out exact Order(s) sought) ...................................................
Or that such other Order(s) as this Honourable Court shall deem
just.
DATED at .................. this .................day of ......................20......
Signed ............................... Petitioner/Advocate for the Petitioner
DRAWN & FILED BY:
TO BE SERVED UPON:
(r. 24) IN THE HIGH COURT OF KENYA AT ............................. CONSTITUTIONAL REFERENCE NO. ...... OF ............
IN THE MATTER OF SECTION 84(3)
IN THE MATTER OF ALLEGED CONTRAVENTION OF
FUNDAMENTAL RIGHTS AND FREEDOMS UNDER
SECTION (insert section) ............................................
IN THE MATTER OF CRIMINAL/ CIVIL CASE NO. ................. OF .................
AT ................................. COURT
BETWEEN
A.B. (insert names of parties) .................. APPLICANT
AND
C.D. (insert names of parties) .................RESPONDENT
To The High Court of Kenya;
Question(s) for determination on the alleged contravention
of Section(s) ......................... of the Constitution of Kenya.
decide the question(s) raised.)
4. The question(s) for determination by the High Court is .....(statethe question(s).
DATED this ......................day of ..................................20........
Magistrate/ Presiding Officer
Form F (r. 26)
IN THE HIGH COURT OF KENYA AT .............................
CONSTITUTIONAL REFERENCE NO. ...... OF ............
IN THE MATTER OF SECTION 84(3)
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION (insert section) ............................................
In the matter of CrImInal/CIvIl Case no .......... of........
AT .......................COURT
BETWEEN
A.B. (insert names of parties) ................. APPLICANT
AND
C.D. (insert names of parties) .................RESPONDENT
To: The High Court of Kenya;
Question(s) for determination of the alleged contravention of
Section(s) ............... of the Constitution of Kenya.
the specific issues contended by each of the parties referring where
necessary to Acts or decided cases.) ........
DATED this ......................day of ..................................20........
Magistrate/Presiding Officer