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Chapter V, Constitution

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Kenya
Constitution

CHAPTER V
PROTECTION OF FUNDAMENTAL
RIGHTS AND FREEDOMS OF THE
INDIVIDUAL.

Fundamental rights and
freedoms of the individual 70 —Whereas every person in Kenya is entitled to the
fundamental rights and freedom s of the individual, that
is to say, the right, whatev er his race, tribe, place of
origin or residence or other local connection, political
opinions, color, 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-

(a) life, liberty, security of the person
and the protection of the law; (b)
freedom of conscience, of expression
and of assembly and association; and

(c) protection for the privacy of his
home and other property and from
deprivation of property without
compensation,

the provisions of this Chapter shall have effect for the
purpose of affording protec tion to those rights and
freedoms subject to such limitat ions of that protection as
are contained in those provisions, being limitations
designed to ensure that th e enjoyment of those rights
and freedoms by any individu al does not prejudice the
rights and freedoms of others or the public interest.

Protection of right to life 71 —(1) No person shall be deprived of his life
intentionally save in execution of the sentence of a court
in respect of 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-

(a) for the defence of any person from violence or for
the defence of property;

(b) in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;

(c) for the purpose of suppressi ng a riot, insurrection or
mutiny; 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.
72 —(1) No person shall be deprived of his personal
liberty save as may be authorized by law in any of the
following cases-

Protection of right to
personal liberty
20 of 1987
4 of 1988 s. 5 (a) in execution of the sentence or order
of a court, whether established for
Kenya or some other country, in respect
of a criminal offence of which he as been
convicted; (b) in execution of the order
of the High Court or the Court of Appeal
punishing him for contempt of that court
or of another court or tribunal; (c) in
execution of the order of a court made
to secure the fulfillment of an obligation
imposed on him by law; (d) for the
purpose of bringing him before a court
in execution of the order of a court; (e)
upon reasonable suspicion of his having
committed, or being about to commit, a
criminal offence under the law of Kenya;
(f) in the case of a person who has not
attained the age of eighteen years, for
the purpose of his education or welfare;
(g) for the purpose of preventing the
spread of an infectious or contagious
disease; (h) in the case of a person who
is, or is reasonably suspected to be, of
unsound mind, addicted to drugs or
alcohol, or a vagrant, for the purpose of
his care or treatment or the protection
of the community; (i) for the purpose of
preventing the unlawf ul entry of that
person into Kenya, or for the purpose of
effecting the expulsion, extradition or
other lawful removal of that person from
Kenya or for the purpose of restricting
that person while he is being conveyed
through Kenya in the course of his
extradition or removal as a convicted
prisoner from one country to another; or
(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.

(3) A person who is arrested or detained-
(a) for the purpose of bringi ng him before a court in
execution of the order of a court; or

(b) upon reasonable suspicion of his having committed,
or being about to commit, a criminal offence,

and who is not released, shall be brought before a court
as soon as is reasonably prac ticable, and where he is not
brought before a court within twenty-four hours of his
arrest or from the commence ment 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 bu rden 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.

(4) Where a person is brought before a court in
execution of the order of a court in execution of the
order of a court in any proceedings or upon suspicion of
his having committed or being about to commit an
offence, he shall not be thereafter further held in
custody in connection with those proceedings or that
offence save upon the order of a court.

(5) If a person arrested or detained as mentioned in
subsection (3) (b) is not tried within a reasonable time,
then without prejudice to an y further proceedings that
may be brought against him, he shall, unless he is
charged with an offence p unishable by death, be
released either unconditionally or upon reasonable
conditions, including in particular such conditions as are
reasonably necessary to ensu re that he appears at a
later date for trial or for proceedings preliminary to trial.

(6) A person who is unlawfully arrested or detained by
another person shall be entitled to compensation
therefor from that other person.

73 —(1) No person shall be held in slavery or servitude. Protection from slavery
and forced labour
(2) No person shall be required to perform forced labour.

(3) For the purposes of this section “forced labour” does
not include-

(a) labour required in consequence of
the sentence or order of a court; (b)
labour required of a person while he is
lawfully detained that, though not
required in consequence of the sentence
or order of a court, is reasonably
necessary in the interests of hygiene or
for the maintenance of the place at
which he is detained; (c) labour required
of a member of a disciplined force in
pursuance of his duties as such, or, in
the case of a person who has
conscientious objections to service as a
member of an armed force, labour that
that person is required by law to
perform in place of such service; (d)
labour required during a period when
Kenya is at war or an order under
section 85 is in force or in the event of
any other emergency or calamity that
threatens the life or well-being of the
community, to the extent that the
requiring of the labour 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.

74 —(1) No person shall be subject to torture or to
inhuman or degrading punishment or other treatment.

Protection from inhuman
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 authorized the inflic tion of any description of
punishment that was lawful in Kenya on 11th December,
1963.

75 —(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-

Protection from deprivation
of property
13 of 1977 s. 3

(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-

(a) the determination of his interest or right, the legality
of the taking of possession or acquisition of the property,
interest or right, and the amount of any compensation to
which he is entitled; and (b) the purpose of obtaining
prompt payment of that compensation:

Provided that it Parliament so provides in relation to a
matter referred to in paragr aph (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.

(3) The Chief Justice may make rules with respect to the
practice and procedure of th e High Court or any other
tribunal or authority in relation to the jurisdiction
conferred on the High Court by subsection (2) or
exercisable by the other tr ibunal or authority for the
purposes of that subsection (including rules with respect
to the time within which applications or appeals to the
High Court or applications to the other tribunal or
authority may be brought).

(4) and (5) (Deleted by 13 of 1977, s. 3.)
(6) Nothing contained in or done under the authority of
any law shall be held to be inconsistent with or in
contravention of subsection (1) or (2)-

(a) to the extent that the law in question makes
provision for the taking of possession of property-

(i) in satisfaction of any tax, duty, rate, cess or other
impost;

(ii) by way of penalty for breach of the law, whether

under civil process or after conviction of criminal offence
under the law of Kenya;

(iii) as an incident of a lease, tenancy, mortgage,
charge, bill of sale, pledge or contract;

(iv) in the execution of judgmen ts or orders of a court in
proceedings for the determination of civil rights or
obligations;

(v) in circumstances where is reasonably necessary so to
do because the property is in a dangerous state or
injurious to the health of human beings, animals or
plants;

(vi) in consequence of any law with respect to the
limitation of actions; or

(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 pr ovision 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

(b) to the extent that the law in question makes
provision for the taking of possession or acquisition of-

(i) enemy property;
(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 purpos e of its administration for
the benefit of the persons entitled to the beneficial
interest therein;

(iii) property of a person ad judged bankrupt or a body
corporate in liquidation, for the purpose of its
administration for the benefi t of the creditors of the
bankrupt or body corporate and, subject thereto, for the
benefit of other pers ons entitled to the beneficial interest
in the property; or

(iv) property subject to a trust, for the purpose of
vesting the property in pers ons 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.

(7) Nothing contained in or done under the authority of
an Act of Parliament shall be held to be inconsistent with
or in contravention of this section to the extent that the
Act in question makes provision for the compulsory
taking possession of property or the compulsory
acquisition of any interest in or right over property
where that property, interest or right is vested in a body
corporate, established by law for public purposes, in
which no moneys have been invested other than moneys
provided by Parliament.

76 —(1) Except with his own co nsent, no person shall be
subjected to the search of his person or his property or
the entry by others on his premises.

Protection against arbitrary
search or entry
(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 makes provision–

(a) that is reasonably required in the interests of
defence, public safety, pub lic 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 re quired for the purpose of
promoting the rights or fr eedoms of other persons;

(c) that authorizes an office r or agent of the Government
of Kenya, or of a local gove rnment 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 th e 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 pr ovision or, as the case may
be, anything done under the authority thereof is shown
not to be reasonably justifiable in a democratic society.

Provisions to secure
protection of law 77 —(1) If a person is charge d with a criminal offence,
then, unless the charge is wi thdrawn, the case shall be
afforded a fair hearing within a reasonable time by an
independent and impartial court established by law.

(2) Every person who is charged with a criminal offence-
(a) shall be presumed to be innocent until he is proved
or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable,
in a language that he understands and in detail, of the
nature of the offence with which he is charged;

(c) shall be given adequate time and facilities for the
preparation of his defence;

(d) shall be pertained to defe nd himself before the court
in person or by a legal repr esentative of his own choice;

(e) shall be afforded facilities to examine in person or by
his legal representative the witnesses called by the
prosecution before the court and to obtain the
attendance and carry out th e examination of witnesses
to testify on his behalf before the court on the same
conditions as those applying to witnesses called by the
prosecution; and

(f) shall be permitted to have without payment the
assistance of an interpreter if he cannot understand the
language used at the trial of the charge,

and except with his own cons ent the trial shall not take
place in his absence unless he so conducts himself as to
render the continuance of the proceedings in his
presence impracticable and th e court his ordered him to
be removed and the trial to proceed in his absence.

(3) When a person is tried for a criminal offence, the
accused person or a person authorized by him in that
behalf shall, if he so requires and subject to payment of
such reasonable fee as may be prescribed by law. be
given within a reas onable time after judgment a copy for
the use of the accused person of any record of the
proceedings made by or on behalf of the court.

(4) No person shall be held to be guilty of a criminal
offence on account of an act or omission that did not, at
the time it took place, constitute such an offence, and no
penalty shall be imposed for a criminal offence that is
severer in degree or description than the maximum
penalty that might have been imposed for that offence at
the time when it was committed.

(5) No person who shows that he been tried by a
competent court for a criminal offence and either
convicted or acquitted sha ll again be tried for that
offence or for any other criminal offence of which he
could have been convicted at the trial of that offence,
save upon the order of a superior court in the course of
appeal or review proceedings relating to the conviction
or acquittal.

(6) No person shall be tried for a criminal offence if he
shows that he has been pa rdoned for that offence.

(7) No person who is tried for a criminal offence shall be

compelled to give evidence at the trial.
(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 cour t 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 announ cement of the decision of
the court or other authority, shall be held in public.

(11) Nothing in subsection (10) shall prevent the court
or other adjudicating author ity from excluding from the
proceedings persons other th an the parties thereto and
their legal representatives to such extent as the court or
other authority-

(a) may by law be empowered to do and may consider
necessary or expedient in ci rcumstances where publicity
would prejudice the interests of justice or in
interlocutory proceedings or in the interests of public
morality, the welfare of persons under the age of
eighteen years or the protecti on of the private lives of
persons concerned in the proceedings; or

(b) may by law be empowered or required to do in the
interests of defence, public safety or public order.

(12) Nothing contained in or done under the authority of
any law shall be held to be inconsistent with or in
contravention of-

(a) subsection (2) (a) to the extent that the law in
question imposes upon a person charged with a criminal
offence the burden of proving particular facts;

(b) subsection (2) (e) to the extent that the law in
question imposes conditions that must be satisfied if
witnesses called to testify on behalf of an accused
person are to be paid their ex penses out of public funds;

or
(c) subsection (5) to the extent that the law in question
authorizes a court to try a member of a disciplined force
for a criminal offence notwithstanding a trial and
conviction or acquittal of that member under the
disciplinary law of that force, so, however, that a court
so trying such a member and convicting him shall in
sentencing him to any punishment take into account any
punishment awarded him unde r that disciplinary law.

(13) In the case of any person who is held in lawful
detention, subsection (1), paragraphs (d) and (e) of
subsection (2) and subsection (3) shall not apply in
relation to his trial for a criminal offence under the law
regulating the discipline of persons held in lawful
detention.

(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.

Protection of freedom of
conscience 78 —(1) Except with his own co nsent, 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 beli ef, 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, pr actice and observance.

(2) Every religious community shall be entitled, at its
own expense, to establish and maintain places of
education and to manage a place of education which it
wholly maintains; and no such community shall be
prevented from providing religious instruction for
persons of that community in the course of any
education provided at a pl ace of education which it
wholly maintains or in the course of any education which
it otherwise provides.

(3) Except with his own consent (or, if he is a minor, the
consent of his guardian), no person attending a place of
education shall be required to receive religious
instruction or to take part in or attend a religious
ceremony or observance if th at instruction, ceremony or
observance relates to a reli gion other than his own.

(4) No person shall be compelled to take an oath which
is contrary to his religion or belief or to take an oath in a
manner which is contrary to his religion or belief.

(5) Nothing contained in or done under the authority of
any law shall be held to he inconsistent with or in

contravention of this section to the extent that the law in
question makes provision which is reasonably required–

(a) in the interests of defence, public safety, public
order, public morality or public health; or

(b) for the purpose of protecting the rights and freedoms
of other persons, includin g the right to observe and
practice a religion without the unsolicited intervention of
members of another religion;

and except so far as that pr ovision or, as the case may
be, the thing done under the authority thereof is shown
not to be reasonably justifiable in a democratic society.

(6) References in this section to a religion shall be
construed as including references to a religious
denomination, and cognate expressions shall be
construed accordingly.

Protection of freedom of
expression 79 —(1) Except with his own co nsent, no person shall be
hindered in the enjoyment of his freedom of expression,
that is to say, freedom to hold opinions without
interference, freedom to re ceive ideas and information
without interference, freedom to communicate ideas and
information without inte rference (whether the
communication he to the public generally or to any
person or class of persons) and freedom from
interference with his correspondence.

(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 makes provision–

(a) that it is reasonably required in the interests of
defence, public safety, public order, public morality or
public health–

(b) that is reasonably re quired for the purpose of
protecting the reputations, rights and freedoms of other
persons or the private lives of persons concerned in legal
proceedings, preventing the disclosure of information
received in confidence, maintaining the authority and
independence of the courts or regulating the technical
administration or the techni cal operation of telephony,
telegraphy, posts, wireless broa dcasting or television; or

(c) that imposes restrictions upon public 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 auth ority thereof is shown not
to be reasonably justifiable in a democratic society.

Protection of freedom of
assembly and association 80 —(1) Except with his own co nsent, 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.

(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 makes provision–

(a) that is reasonably required in the interests of
defence, public safety, public order, public morality or
public health;

(b) that is reasonably re quired for the purpose of
protecting the rights or freedoms of other persons;

(c) that imposes restrictio ns 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 qu alified for registration, and
conditions whereby registrati on 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
of a substantial proportion of the interests in respect of
which registration of a trad e union or association of
trade unions is sought),

and except so far as that provision or, as the can may
be, the thing done under the authority thereof is shown
not to be reasonably justifiable in a democratic society.

Protection of freedom of
movement 81 —(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.

(2) Any restriction on a person’s freedom of movement
that is involved in his lawful detention shall not be held
to be inconsistent with or in contravention of this
section.

(3) 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 makes provision–

(a) for the imposition of rest rictions on the movement or

residence within Kenya of any person or on any person’s
right to leave Kenya that are reasonably required in the
interests of defence, public safety or public order;

(b) for the imposition of rest rictions on the movement or
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 mo rality, 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;

(c) for the imposition of restri ctions, by order of a court,
on the movement or residence within Kenya of any
person’s right to leave Kenya either in consequence of
his having been found guilty of a criminal offence under
the law of Kenya or for the pu rpose of ensuring that he
appears before a court at a later date for trial at such a
criminal offence or for proceedings preliminary to trial or
for proceedings relating to his extradition or lawful
removal from Kenya;

(d) for the imposition of restrictions on the acquisition or
use by any person of land or other property in Kenya;

(e) for the imposition of restrictions upon the movement
or residence within Kenya or on the right to leave Kenya
of public officers or of members of a disciplined force;

(f) for the removal of a person from Kenya to be tried or
punished in some other country for a criminal offence
under the law of that other country or to undergo
imprisonment in some other country in execution of the
sentence at a court in respec t of a criminal offence under
the law of Kenya of which he has been convicted; or

(g) for the imposition of rest rictions on the right of any
person to leave Kenya that are reasonably required in
order to secure the fulfilment of any obligations imposed
on that person by law and except so far as that provision
or, as the cam may be, th e 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 no t 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 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.

(5) On a review by a tribunal in pursuance of subsection
(4) of the case of a person whose freedom of movement
has been restricted, the tribunal may make
recommendations concerning the necessity or
expediency of continuing that restriction to the authority
by whom it was ordered and, unless it is otherwise
provided by law, that authority shall be obliged to act in
accordance with any su ch recommendations.

(6) Until it is otherwise provided by Act of Parliament
nothing in this section shall affect the operation of the
Outlying Districts Act* or the Special Districts
(Administration) Act* or any law amending or replacing
either of those Acts: 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 im posed 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.

*Note these Actts were repealed by 10 of 1997
82 —(1) Subject to subsections (4), (5) and (8), no law
shall make any provision that is discriminatory either of
itself or in its effect.

Protection from
discrimination on grounds
of race etc.

9 of 1997 s. 9 (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 o ffice 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, plac e of origin or residence or
other local connection, political opinions, colour, creed or
sex whereby persons of on e such description are
subjected to disabilities or re strictions 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-

(a) with respect to persons who are not citizens of
Kenya;

(b) with respect to adoption , marriage, divorce, burial,
devolution of property on death or other matters of
personal law;

(c) for the application in the case of members of a
particular race or tribe of customary law with respect to
any matter to the exclusion of any law with respect to
that matter which is applicable in the case of other
persons; or

(d) whereby persons of a description mentioned in
subsection (3) may be sub jected to a disability or
restriction or may be accorded a privilege or advantage
which, having regard to its nature and to special
circumstances pertaining to those persons or to persons
of any other such description, is 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 connection, 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.

(6) Subsection (2) shall not apply to–
(a) anything which is ex pressly or by necessary
implication authorized to be done by a provision of law
referred to in subsection (4); or

(b) the giving or withholding of consent to a transaction
in agricultural land by any body or authority established
by or under any law for the purpose of controlling
transactions in agricultural land.

(7) Subject to subsection (8), no person shall be treated
in a discriminatory manner in respect of access to shops,
hotels, lodging-houses, public restaurants, eating
houses, beer halls or places of public entertainment or in
respect of access to places of public resort maintained
wholly or partly out of public funds or dedicated to the
use of the general public.

(8) 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 makes provision whereby persons of a
description mentioned in, subsection (3) may be
subjected to a restriction on the rights and freedoms
guaranteed by sections 76, 78, 79, 80 and 81, being a
restriction authorized by section 76 (2), 78 (5), 79 (2),
80 (2), or paragraph (a) or (b) of section 81 (3).

(9) Nothing in subsection (2) shall affect any discretion

relating to the institution, conduct or discontinuance of
civil or criminal proceedings in a court that is vested in a
person by or under this Constitution or any other law.

Derogation from
fundamental rights and
freedoms

Cap. 57
83 —(1) Nothing contained in or done under the
authority of an Act of Parliament shall be held to be
inconsistent with or in contravention of section 72, 76,
79, 80. 81 or 82 when Kenya is at war, and nothing
contained in or done under the authority of any provision
of Part III of the Preservation of Public Security Act shall
be held to be inconsistent with or in contravention of
those sections of this Constitution when and in so far as
the provision is in operation by virtue of an order made
under section 85.

(2) Where a person is detained by virtue of a law
referred to in subsection (1) the following provisions
shall apply-

(a) he shall, as soon as re asonably 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 particul ars 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 si x months, his case shall be
reviewed by an independen t 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;

(d) he shall be afforded reason able facilities to consult a
legal representative of his own choice who shall be
permitted to make representations to the tribunal
appointed for the review of the case of the detained
person; and

(e) at the hearing of his ca se by the tribunal appointed
for the review of his case he shall be permitted to appear
in person or by a legal repr esentative of his own choice.

(3) On a review by a tribunal in pursuance of this section
of the case of a detained person, the tribunal may make
recommendations concerning the necessity or
expediency of continuing his detention to the authority
by which it was ordered but, unless it is otherwise
provided by law, that authority shall not be obliged to

act in accordance with any such recommendations.
(4) Nothing contained in subsection (2) (d) or (e) shall
be construed as entitling a person to legal representation
at public expense.

Enforcement of protective
provisions
6 of 1992 s. 10
9 of 1997 s. 10
84 —(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 pers on), then, without prejudice
to my 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.

(2) The High Court shall have original jurisdiction–
(a) to hear and determine an application made by a
person in pursuance of subsection (1);

(b) to determine any question arising in the case of a
person which is referred to it in pursuance of subsection
(3),

and may make such orders, issue such writs and give
such directions as it may consider appropriate for the
purpose of enforcing or secu ring the enforcement of any
of the provisions of sections 70 to 83 (inclusive).

(3) If in proceedings in a subordinate court a question
arises as to the contravention of any of the provisions of
sections 70 to 83 (inclusive), the person presiding in that
court may, and shall if any party to the proceedings so
requests, refer the question to the High Court unless, in
his opinion, the raising of the question is merely
frivolous and vexatious.

(4) Where a question is refe rred to the High Court in
pursuance of subsection (3), the High Court shall give its
decision upon the question and the court in which the
question arose shall dispose of the case in accordance
with that decision.

(5) Parliament-
(a) may confer upon the Hi gh Court such powers in
addition to those conferred by this section as may
appear to be necessary or desirable for die purpose of
enabling that Court, more e ffectively, 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.

(6) The Chief Justice may make rules with respect to the
practice and procedure of the High Court in relation to
the jurisdiction and powers co nferred on it by or under
this section (including rules with respect to the time
within which applications may be brought and references
shall be made to the High Court).

(7) A person aggrieved by the determination of the
Court under this section may appeal to the Court of
Appeal as of right.

Preservation of Public
Security
Cap. 57
85 —(1) Subject to this sect ion, the President may at
any time, by order published in the Kenya Gazette, bring
into operation, generally or in any part of Kenya, Part III
of the Preservation of Public Security Act or any of the
provisions of that Part of that Act.

(2) An order made under this section shall cease to have
effect on the expiration of the period of twenty-eight
days commencing with the day on which the order is
made, unless before the expirati on of that period it has
been approved by a resolution of the National Assembly,
but in reckoning any period of twenty-eight days for the
purposes of this subsection no account shall be taken of
any time during which Parliament is dissolved.

(3) An order made under this section may at any time be
revoked by the President by an order published in the
Kenya Gazette.

(4) An order made under this section and approved by a
resolution of the National A ssembly in accordance with
subsection (2) may at any time be revoked by a
resolution of the Assembly su pported by a majority of all
the members of the Assembly (excluding the ex officio
members).

(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 i mmediately 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.

Interpretation and savings 86 —(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-
(a) any of the armed forces;
(b) a police force;
(c) a prison service; or
(d) the National Youth Service;
“legal representative” means a person entitled to
practice 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.

(2) In relation to a person who is a member of a
disciplined force raised under any law in force 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 other than sections 71, 73 and
74.

(3) In relation to a person who is a member of a
disciplined force raised otherwise than as aforesaid and
lawfully present in Kenya, nothing contained in or done
under the authority of the di sciplinary law of that force
shall be held to be inconsiste nt with or in contravention
of any of the provisio ns of this Chapter.

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