REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT … against Legal... · republic of kenya in the...

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. OF 2020

LAW SOCIETY OF KENYA PETITIONER/APPLICANT

-VERSUS-

ATTORNEY GENERAL. 1s1 RESPONDENT CABINET SECRETARY FOR HEALTH, MUTAHI KAGWE 211<1 RESPONDENT

-AND-

KENYA NATIONAL COMMISSION FOR HUMAN RIGHTS lstINTERESTED PARTY SPEAKER OI?TIIE NATIONALASSEMBLY 2I1d INTERESTED PARTY

CERTIFICATE OF URGENCY

I, OMWANZA OMBATI, counsel for the PETITIONER/APPLICANT, CERTIFY that the

enclosed Petition And Application) are extremely urgent and worthy of an expedited hearing for the

reasons that:

I. On 61h April. 2020 the Respondents issued/gazetted the Public Health (COViD i 9 Restriction

of Movement ofPersons and Related Measures) Rules, 2020.

2. That whereas the Rules were Published on 6th of April 2020, the same have not been tabled

before the National Assembly within 7 (seven) days and are therefore void upon the expiry of

the 7th day. The same were published in the Daily Nation of 1 Olh April 2020.

3. That there is no Gazette Notice published on 61h of April 2020 at the ekl website

(http://':Yvv~~_kenyalaw.ondkenya gazette/gazette/lllonth/4/2020/) and the Minister is in

breach of tile rules requiring easy accessibility ofa regulation or law in an intelligible manner

that is accessible to the general public.

4. The Petitioner contends that the Regulations are unconstitutional because:

I. they are discriminatory against the poor who cannot afford face masks; ii. they were never subjected to any form of public participation;

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Ill. they introduce a criminal penalty contrary to the statute; IV. they are void for vagueness; and v. they were never approved by Parliament contrary to the Statutory Instruments Act.

5. Without the timely intervention of this Honourable Court and the grant of injunctive reliefs of

a conservatory nature, the Petition and Application will be rendered nugatory; to the detriment

of the general public; as persons perceived to be in contravention of the impugned Regulations

(their vagueness and exfacie unconstitutionality notwithstanding) will be arrested, prosecuted

and convicted while these proceedings are pending before this Honourable court.

6. Moreover, as the movement of persons has been lim ited by a curfew Order and an Order

barring movement out of infected counties, the question of provisions of affordable/free face

masks to vulnerable groups is of itself urgent.

DATED at NAIROBI this 14th day of April 2020,

Nchogu, Omwanza & Nyasimi Advocates for The Petitioner/Applicant

DRAWN & FILED BY:-

NCHOGU, OMWANZA & NYASIMI ADVOCATES, HAZIN~i ,~, MONROVIA ,}:R"EET, ~:B130X 4045-00200. NAIROBI Tel. 0202252306/0727727249 E-mail: [email protected]

TO BE SERVED UPON:

1. Cabinet Secretary for Health, Mr. Mutahi Kagwe, Afya House, Cathedral road, P.O. Box 30016-00 I 00. NAIROBI ps(w,heal th.,go. ke

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2. The Honourable Attorney General, AG's Chambers, Sheria House, Hararnbee Avenue, P.O. Box 40112-00100 NAIROBI [email protected]

3. Kenya National Commission on Human Rights CYS Plaza I ,[ Floor, Kasuku Lane off Lenana Road, P.O. Box: 74359-00200 NAIROBI [email protected]

4. The Clerk of The National Assembly, Parliament Buildings, Parliament Road, NAIROBI [email protected]

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LAW SOCIETY OF KENYA PETITIONERJAPPLICANT

-VERSUS-

ATTORNEY GENERAL 151 RESPONDENT CABINET SECRETARY FOR HEALTH, MUTAHI KAGWE 2nd RESPONDENT

-AND-

KENYA NATIONAL COMMISSION FOR HUMAN RIGlITS 151 INTERESTED PARTY SPEAKER OFTLIE NATIONALASSEMBLY 2Ild INTERESTED PARTY

NOTICE OF MOTION

TAKE NOTICE that this Honourable Court shall be moved on the __ day of April 2020 at 9:00

in the forenoon or soon thereafter as the PETITIONER/APPLICANT may be heard on its application

FOR ORDERS:

1. THAT this APPLICATION and the annexed PETITION be certified urgent and be heard

ex parte at the first instance and speedily thereafter;

2. THAT pending hearing and subsequent determination of this APPLICATION and the

PETITION, a CONSERVATORY ORDER be issued STAYING implementation or oper

ation of the Public Health (CO VID 19 Restriction of Movement of Persons and Related

Measures) Rules, 2020 particularly Regulations 4, 5, 6, 7, 9 and 11.

3. THAT in the alternative, pending the hearing and determination of the Petition, a con

servatory order be issued DIRECTING the Respondents to:

a) supply free face masks to ALL vulnerable groups/the needy/the homeless and street families.

4. THAT in view of the extreme urgency of the matter; and social distancing directives, the

Petitioner be permitted to effect service electronically through the email addresses pro

vided herein.

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5. THAT there be no order as to costs.

ON THE GROUNDS THAT:

1. On 6'h April 2020, The President of Kenya, in a press conference ordered the cessation of

movement in and out of Nairobi, Mombasa and Kwale counties. The order was to take force

in Nairobi Metropolitan Area on the same day at 7.00 pm and in Mombasa and Kwale Coun

ties on Wednesday. 8'h April 2020 at 7pm.

2. On the same day. 6Th April 2020, the Respondents gazetted Legislation Public Health (CO VID

19 Restriction 0./ Movement of Persons and Related Measures) Rules, 2020 through Legal

Notice No. 500./ 2020. The Regulations were not preceded by any attempt at any form of

public participation.



the 7th day. The same were published in the Daily Nation of loth April 2020.

4. That there is llO Gazette Notice published on 6th of April 2020 at the ekl website

(http://www.kenyalaw.org/kenya_gazette/gazette/month/4/2020/) and the Minister is in

breach of the rules requiring easy accessibility ofa regulation or law in an intelligible manner


5. The Petitioner avers that the Regulations are unconstitutional because:

I. they are indirectly discriminatory against the very poor who cannot afford face masks;

II. they were never subjected to any form of public participation; iii. they introduce a criminal penalty contrary to the statute; IV. they are void for vagueness; and v. they were never approved by Parliament contrary to the Statutory Instruments Act.

6. Imposition of a mandatory requirement to wear masks, with penal consequences for non-com

pliance, without provisions of masks to vulnerable groups/the needy and the homeless; per

sons who who cannot genuinely afford the masks is indirectly discriminatory and violates

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Article 27 of the Constitution.

7. Further, restricting travel without measures to provide Face masks to individuals and families

adversely impacted by the restriction violates their constitutional right under Article 43 a/the

Constitution.

8. The result of th is order was that many Kenyans were stranded as they could not travel back

to their domiciles. Several of these persons were Kenyans who had left their counties to collect

bodies of loved ones who had perished in other counties.

9. The requirement for a lone driver to put on a mask whilst in the vehicle is irrational.

10. The impugned Rules have been abused in so far as burial is concerned. The case of James

Oyugi is an example of atrocious conduct by public health authorities in handling the death

and burial of the said James Oyugi.

11. The fact that these rules were gazetted on the same day that they were notified to the public

shows that the public was not informed of the rules and was not accorded sufficient time to

read, understand and engage the Respondents on the rules.

12. The public was also not given ample time to ensure they would not be found in contravention

of the rules i ncl ud ing travel I ing back to their homes if they were outside the restricted areas

or procuring face masks.

13. The actions and ommissions of the Respondents are contrary to the provisions of the Consti

tution, which provide for public participation as a national value and a fundamental human

right.

14. Further, the impugned Regulations were issued/gazetted without following the due procedure

and or process as stipulated by the Statutory Instruments Act 2013, which require reulation

making authorities to undertake appropriate consultations before making statutory instru

ments, establishing mechanisims to ensure that statutory instruments are periodically re

viewed. The Act also states that the regulation making authority shall make appropriate

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consultations with persons who are likely to be affected by the proposed instrument.

I S. Section 11 of the Statutory Instruments Act obligates every Cabinet secretary responsible for

a regulation-making authority to, within 7 sitting days after the publication of the statutory

instrument, ensure that a copy is transmitted to the responsible clerk before tabling before

parliament. This was not done.

16. Section 11 (-/) of the Statutory Instruments Act provides that, in a Cabinet Secretary's default

of section 11 (l ) of the Statutory Instruments Act, the statutory instrument issued by the CS

ceases to have effect immediately after the last day for it to be so laid before the House.




(their vag1leness and ex facie unconstitutionality notwithstanding) will be arrested, prosecuted


WHICH APPLICArION is supported by the annexed affidavit of MERCY WAMBUA and by such

other grounds, reasons and arguments as may be advanced at the hearing of the appl ication.

DATED at NAIROBI this 14th day of April 2020.


DRAWN & FILED BY:-

E-mail: omwanza.ombatiQ:.{lgmail.com

TO BE SERVED U PO N: of 29

1. Cabinet Secretary for Health, Mr. Mutahi Kagwe, Afya House. Cathedral road, P.O. Box 30016-00 i 00. NAIROBI [email protected]

2. The Honourable Attorney General, AG's Chambers, Sheria House, Harambee Avenue, P.O. Box40112-00100 NAIROBI comlllunications'(i ag.go.ke

3. Kenya ational Commission on Human Rights CVS Plaza I st Floor, Kasuku Lane off Lenana Road, P. O. Box: 74359-00200 NAIROBI h_E.I k i({iJ k n CJ}LQ[g

4. The Clerk ofThe National Assembly, Parliament Buildings, Parliament Road. NAIROBI cierk(2l)parl iamcnt. go.ke

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LAW SOCIETY OF KENyA PETITIONERJAPPLICANT

-VERSUS-

ATTORNEY GENERAL 1 st RESPONDENT CABINET SECRETARY FOR HEALfH, MUTAHI KAGWE 2nd RESPONDENT

-AND-

KENYA NATIONAL COMMISSION FOR HUMAN RIGHTS PtINTERESTED PARTY SPEAKER OFTIJE NATIONALASSEMBLY 2nd INTERESTED PARTY

PETITION

TO: THE HIGH COURT OF KENYA NAIROBI

The Law Society of Kenya, whose address of service is care of Nchogu, Omwanza & Nyasimi Ad vocates, Hazina Towere. 6th Floor, Monrovia Street, Nairobi, P.O Box 405-00200, Nairobi 0727- 727249 ol1lwan~il,_QI.l1barj[(t)Qmail.com PETITIONS the court as follows:

a) Introduction and parties

1. This Petition concerns the constitutionality of the Public Health (COVID 19 Restriction of

Movement ofPersons and Related Measures) Rules, 2020 issued/gazetted by the 2nd Respond

ent on 6,11 April. 2020. The Petitioner avers that the Regulations are unconstitutional because:

they are indirectly discriminatory against the needy who cannot afford face masks: they were

never subjected to any form of public participation; they introduce a criminal penalty; they are

void for vagueness; and they were never approved by Parliament contrary to the Statutory In

struments Act.

2. The Petitioner is a statutory body established by the Law Society 0/ Kenya Act 20 f -I with a

statutory mandate, under section 4 of the Act, to inter alia, protect, and assist members of the

public in Kenya in matters relating to, ancillary or incidental to the law. The Petitioner is obliged

to assist the government and the courts in matters relating to legislation, the administration of of 29

justice and the practice of Law in Kenya. The Petitioner is further mandated to uphold the Con

stitution of Kenya and advance the rule of Law and the administration of justice. The Petitioner

brings this petition on its own behalf and on behalf of its members and the greater public, in

public interest.

3. The I Sl Respondent is the Attorney General of the Republic of Kenya. He is sued as the principal

legal adviser of the Government and the representative ofthe national government in court

proceedings, as provided under Article 156 of the Constitution. He is also sued for neglecting

to advice the 2,](1 Respondent on the unconstitutionality of his actions.

4. The 2nd Respondent is a Cabinet Secretary within the meaning of Article 152 a/the Constitution/

Pursuant to the same provision and his oath of office, he sworn to "obey, respect and uphold

[the] Constitution of Kenya and all other laws of the Republic" and to "well and truly serve the

people and the Republic of Kenya in the Office of a Cabinet Secretary." He is sued in his ca

pacity as the Cabinet secretary for Health; on account of his issuance of the impugned Regula

tions.

5. The I Sl Interested Party is the Kenya National Commission on Human Rights (KNCHR), a

human rights commission established by Article 59 of the Constitution of Kenya 2010 and ad

ministered through the Kenya National Commission on Human Rights Act, 2011. The Inter

ested Party is the lead agency on promotion and protection of human rights. The interested

party is enjoined in these proceedings as having an identifiable interest and legitimate stake.

6. The 2nd Interested Party is the head of one of the Houses comprising the National Legislature.

Having an identifiable interest and legitimate stake, he is enjoined in these proceedings as the

head of the Authority before whom the impugned Regulations had to be tabled- the National

Assembly.

b) Legal FOllndation to the Petition

7. The Constitution of Kenya is the Supreme Law of the Land from which all Laws derive their

authority and force

8. Under Article J a/the Constitution, all sovereign power belongs to the People of Kenya

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9. By dint of Article 2. the Constitution binds all persons and all state organs.

10. Pursuant to Article -/(2) of the Constitution, the Republic of Kenya is a multi-party democratic

state founded 011 the National Values and principles of governance in Article JO.

11. Article J 0 of the Constitution sets out the national values and principles of governance that bind

all state organs, state officers, public officers and all persons whenever they apply or interpret

the Constitution. whenever they enact, apply or interpret any law or whenever they implement

public policy decisions. The national values and principles of governance include the rule of

law, democracy, and participation of the people, good governance, transparency and accounta

bility.

12. Under Article 19(1) of the Constitution, the Bill of Rights is an integral part of Kenya's demo

cratic state and is the framework for social, economic and cultural policies. Further, Article

19(2) indicates that the purpose of recognising and protecting human rights and fundamental

freedoms is to preserve the dignity of individuals and communities and to promote socialjustice

and the real isation of the potential of all human beings.

13. According to Article 19(3) of the Constitution the rights and fundamental freedoms in the Bill

of Rights,

(a) belong to each individual and are not granted by the State;

(b) do not excl ude other rights and fundamental freedoms not in the B ill of Rights, but recog

nised or conferred by law, except to the extent that they are inconsistent with this Chapter;

and

(c) are subject only to the lim itations contemplated in this Constitution.

14. By dint of Article 20(1) of the Constitution the Bill of Rights applies to all law and binds all

State organs and all persons. Article 20(2) entitles every person to enjoy the rights and funda

mental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the

right or fundamental freedom.

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15. Article 20(3) of/he Constitution requires this court to adopt the interpretation that most favours

the enforcement of a right or fundamental freedom.

16. Article 20(4) a} the Constitution requires the court, tribunal or other authority interpreting the

Bill of Rights, to promote the values that underlie an open and democratic society based on

human dignity, equality, equity and freedom; as well as the spirit, purport and objects of the

Bill of Rights.

17. Article 21 (1) ofthe Constitution obligates the State and every State organ to observe, respect.

protect, promote and fulfi I the rights and fundamental freedoms in the B ill of Rights.

18. Further Article 210) of the Constitution places a duty on all State organs and all public officers

have the duty to address the needs of vulnerable groups within society, including women, older

members of society, persons with disabilities, children, youth, members of minority or margin

alized communities, and members of particular ethnic, religious or cultural communities.

19. Article 2 J (2) ofthe Constitution requires the State to take legislative, policy and other measures,

includ ing the setti llg of standards, to achieve the progressive real ization of the rights guaranteed

under Article 43. Article 21(4) obligates the state to enact and implement legislation to fulfill

its international obligations in respect of human rights and fundamental freedoms.

20. Article 26(1) ofthe Constitution entitles every person the right to life.

21. Article 27 of the Constitution entitles every person to equality before the law and the right to

equal protection and benefit of the law. Article 27(4) also forbids direct and indirect discrimi

nation against any person including on the basis of social status.

22. Article 28 of the Constitution entitles every person to inherent dignity and the right to have that

dignity respected and protected.

23. Article 29 of the Constitution entitles every person to the right to freedom and security of the

person. which includes the right not to be treated in a cruel. inhuman or degrading manner.

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24. Article 33 0/ The Constitution underpins the freedom of expression and provides that every

person has the right to freedom of expression which includes the freedom to seek, receive or

impart information or ideas.

25. Under Article 35 a/The Constitution; Every person has the right of access to information held

by the state and that the State shall publish and publicize any important information affecting

the nation.

26. Article -13 of the Constitution entitles every person: to the highest attainable standard of health;

to be free from hunger. and to have adequate food of acceptable qualitv; to be free from hunger.

and to have adequate food of acceptable quality; to clean and safe water in adequate quantities

and to social securit)~.

27. Under Article} 18 of The Constitution; (I) Pari iarnent shall- Conduct its business in an open

manner. and its sittings and those of its committees shall be in public and

(b) Facilitate public participation and involvement in the legislative and other business of

Parliament and its committees.

(2) Parliament may not exclude the public, or any media, from any sitting unless in excep

tiona I c ircum stances the relevant Speaker has deterrn ined that there are justifiable reasons

for the exclusion

28. Under s rticle 232 0/ The Constitution, The values and principles of public service include-

involvement of the people in the process of policy making; accountability for administrative

acts and transparency and provision to the public of timely. accurate information. The values

and principles 01 public service apply to public service in--all State organs and all state corpo

rations.

29. In terms of Article 2 (6) of The Constitution. any treaty or convention ratified by Kenya shall

form part of the Law of Kenya under the constitution

ICCPR

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30. Under Article 25 or the ICCPR, Every citizen shall have the right and the opportunity, without

distinction and without unreasonable restrictions to take part in the conduct of public affairs, di

rectly or through freely chosen representatives.

ICESCR

31. Article J I of the International Covenant on Economic, Social and Cultural Rights recognizes the

right of everyone to an adequate standard of living for himselfand his family, inc!udingadequate

food, clothing ancl housina, and to the continuous improvement of living conditions. The States

Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect

the essential importance of international co-operation based on free consent.

STATUTES

(a) Statutory Instruments Act, 2013

32. The Statutory Instnunents Act defines a statutory instrument as an}! rule, order, regulation, di

rection. limn, lartj[_gf costs or tees, letters patent, commission, warrant. proclamation, b}! law,

reSOI1lIiol1. ,?uidelille or other statutOI'll instrument issued, made or established in the execution

ora power con[errea by or under an Act orParliament 1Inder which that statutOlY instrument or

subsidi(/rv legis/alion is expressly authorized to be issued.

33. The Act applies to every statutory instrument made directly or indirectly under any act of par Ii a

ment or written legislation

34. The objectives 01 the Act are outlined under Section 4 ofthe Act, which is to provide a compre

hensive regime for the making, scrutiny, publication and operation of statutory instruments by

requiring regulation making authorities to undertake appropriate consultation before making stat

utory instruments: requiring high standards in the drafting of statutory instruments to promote

their legal effectiveness. clarity and intelligibility to anticipated users; improving public access to

statutory instruments; establishing improved mechanisms for parliamentary scrutiny of statutory

instruments aile! establishing mechanisms to ensure that statutory instruments are periodically re

viewed and they no longer have a continuing purpose, repealed.

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35. Section 5 oj the Ael in making provision for consultation before making statutory instruments

states that:

5. (I) Before a rel'.ulation-making authority makes a statutory instrument, and in particular

where the proposed statutory instrument is likely to-

(a) Have a direct, or a substantial indirect effect on business; or

(b) Restrict competition; the regulation-making authority shal I make appropriate con

sultations with persons who are likely to be affected by the proposed instrument.

(2) In deterrn i 11 i ng whether any consultation that was undertaken is appropriate, the regulation

making authority shall have regard to any relevant matter, including the extent to which the

consul tation-

(a) Drew on the knowledge of persons having expertise in fields relevant to the pro

posed statutory instrument; and

(b) Ensured that persons likely to be affected by the proposed statutory instrument

had an adequate opportunity to comment on its proposed content

(3) Without limiting by implication the form that consultation referred to in subsection (1)

might take, the consultation shall-

(a) lnvolve notification, either directlv or by advertisement, of bodies that, or of or

ganizations representative of persons who, are likely to be affected bv the proposed

(b) invite submissions to be made by a specified date or might invite participation in

l2ublic hearings to be held concerning the proposed instrument.

36. Section JO was enacted us facilitate the scrutiny by Parliament of statutory instruments and to set

out the circumstances and manner in which the statutory instruments, or provisions a/the statu

tory instrtunents. 11101' be disallowed. as wei! as the consequences ofthe disallowance.

37. Section J J states that Everv Cabinet SecretCllY responsible {or a regulation-making aUl/zoritv

shalllVilhin seven (7) sitting da}'.s aOer the {2ublication ora statutolY instrument, ensure thai a

copy otlhe sloilltor\l instrument is transmitted to the res{2onsible Clerk (or tabling before Parlia-

ment.

(2) An explanatory memorandum in the manner prescribed in the Schedule shall be attached

to any statutory instrument laid or tabled under subsection (I).

p:1.fre 15 of 29 b

(3)The responsible Clerk shall register or cause to be registered every statutory instrument

transmitted to the respective House for tabling or laying under this Part.

(4) I f a copy 0 f a statutory instrument that is required to be laid before Pari iament is not so

laid in accordance with this section, the statutory instrument shall cease to have effect imme

diately after the last day for it to be so laid but without prejudice to any act done under the

statutory instrument before it became void.

38. Section j 2 (1) requires every statutory instrument issued, made or established after the com

mencement or this Act to stand referred to the Committee or any other committee that may be

established for the purpose of reviewing and scrutinizing statutory instruments.

39. Section 13 states that The Committee shall, in carrying out its scrutiny of any statutory instrument

or published Bill be guided by the principles of good governance, rule of law and shall in partic

ular consider whether the statutory instrument-

(a) is in accord lvith the provisions o[the Constitution, the Act pursuant to which it is made

or olher written te»:

(b) infj-in'J;es Oil /illldamental rjghts and freedoms ofthe public: appears {or any reason to

in/i-illge on/he rille o[law,'

(n) uuuuse: a Line. imprisonment or other penalty without express authority having been pro

viderl {or ill/he en{lbling legislation,'

(i) QJ2peal's to m(/ke some unusual or unexpected use o[the powers conferred bv the Consti

tz/I iOI7 or I he A cuusssam to which it is mode ,. }Ql___gQpears [or (/Ill' reason to infringe on the rule oflmv:

(0) Interpretation and General Provisions Act, Cap 2

40. Under section 3 j (e) of the Interpretation and General Provisions Act, Cap 2 where an Act

confers power on an authority to make subsidiary legislation, the following provisions shall,

unless a contrary intention appears, have effect with reference to the making of the subsidiary

legislation there may be annexed to the breach of subsidiary legislation a penalty, not exceeding

of 29

six thousand shillings or such term of imprisonment not exceeding six months, or both, which

the authority making the subsidiary legislation may think fit.

c) The Facts of the Case

41. On tZ" rljJril2020. the 1st Respondent unilaterally iissued/gazetted the Public Health (Covid-Iv

Restriction ofMovctuent 0./ Persons and Related Measures) Rules 2020 without any attempt at

publ ic participation. The Regulations curtail the freedom of movement and compel the wearing

of face masks under the threat of a penalty of a fine not exceeding twenty thousand shillings or

to imprisonment tor a period not exceeding six months or both.



the 7th day. The same were published in the Daily Nation of 10th April 2020.

43. That there is no Gazette Notice published on 6th of April 2020 at the ekl website

(http://www.kenyalaw.org/kenya_gazette/gazette/month/4120201) and the Minister is in breach

of the rules requiring easy accessibility of a regulation or law in an intelligible manner that is

accessible to the general public.

Particulars of Unconstitutionality

44. The Regulations are unconstitutional because:

i. they are indirectly discriminatory against the very poor who cannot afford face masks;

II. they introduce a criminal penalty;

III. they are void for vagueness;

iv. they were never subjected to any form of public participation; and

v. they were never approved by Parliament contrary to the Statutory Instruments Act.

• Article 27(4) _ Indirect Discrimination Against tile POOl' and Vulnerable

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45. The 1110st recent report of the Kenya National Bureau of Statistics- Basic Report on wellbeing

found that, in terms of food poor or persons who live in food poverty,' "14.5 million individuals

did not meet 1 he food poverty line threshold. In other words, about one in every three individu

als ill KeIZ}'(/ is 1I17(/IJ!e to consume the minimum daily calorific requirement of 2,250 Kcal as

per their expenditures on food. Food poverty incidence remains highest in rural areas, where

35.8 per cent 0/ tile population (l0.4 million individuals) were below the food poverty line

COIIIIXtred 10 28.9 per cent (almost 1 million individuals) in periurban areas and 29. -I per cent

(almost 3.2 million individuals) in core-urban"

46. With respect to overall poverty," the statics showed "that overall poverty headcount rate for

individuals at the national level was 36.1 per cent in 2015/16, implying that 16.4 million indi-

victuals lived ill overall poverty."

47. With respect to Hardcore or Extreme Poverty;' the statistics indicate that "the hardcore (or

extreme) po pert)' Ilene/count rate for individuals was 8.6 per cent in 2015116, implying that 3.9

million people lived ill conditions of abject poverty and were unable to afford the minimum

req airedfood consumption basket even if they allocated all their expenditure on food alone.

Extreme poverty incidence remains highest in rural areas, where 11.2 per cent a/residents (3.2

million individuals) were hardcore poor, The results further indicate that six per cent of house-

holds Il'ere extreme poor, "

48. Similarly, According to the world poverty clock, 7,781,120 out of a total population of

48,872,784 representing 16% of the population live in extreme poverty with the poverty thresh

old being those that live below a dollar a day. 19% of these below the poverty line reside in

rural areas while 9% live in urban area.

I defined (IS households and individuals whose monthly adult equivalentfood consumption expenditure per person is less than Ksh 1,95-1 ill rural {I/1(1 peri-urban areas and less tl70/1 Ksh 2,55/ in core-urban orcas 2 defined as households {II/(I individuals whose monthly adult equivalent total consumption expenditure per person is less than Ksh 3,252 ill /'II/'(II and peri-urban areas and less than Ksh 5,995 in core-urban areas are considered to be overall poor or lire in "overall poverty .1 defined as "households and individuals whose monthly adult equivalent total consumption expenditure pel' person is less than Ksh 1,95-1 ill 1'111'(11 0/1(1 peri-urban areas and less than Ksh 2,55/ in core-urban areas respectively"

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49. Accord ing to the Quarterly Labor Force Survey for the period September to December 2019,

The percentage of youth not in Education, employment or training was recorded at 13.3 % of

the total population: the youth (20%-24% had the highest proportion of the unemployed at

14.2%. The survey also revealed that the overall employment to population ratio in the country

was 66.7% for the working age population.

50. To have the Respondents expect that all persons have masks is absurd and proves that they are

detached from the reality of many Kenyans who cannot put food on their tables let alone pur

chase a mask; A mask which is currently retailing at 150 Kenya Shillings; a mask that is, by

World Helath Organ ization Gu ide I ines, to be used once na dd isposed.

51. The Petitioner avers. therefore, that the imposition of a mandatory requirement to wear masks,

with penal sanctions. without provision of masks by the government to those who genuinely

cannot afford them is indirectly discriminatory and violates Articles 27(4) of the Constitution.

52. The Petitioner avers that the penalties under the regulations. in as much as they seek to punish

persons who are caught without masks, have the effect of punishing and undermining the dig

nit)' 0 f persons 011 t he basis of their socio econorn ic status and pun ish persons who are not able

to a fford masks because of their econorn ic real ities.

53. The enforcement of this Regulations will, in effect, bring about a criminal justice response to a

socia economic issue- which has the effect of criminalizing poverty. Moreover, by failing to

provide the needy, the poor and the vulnerable with masks, the I st Respondent's Regulations

infa i 1'1 Y and i llega II)' potentially target persons who are poor.

54. That there are adverse socio economic impacts of these penalties such as

• imposing a line to persons who definitely cannot pay,

• harassment by the police

• the resultant economic burden to households of people who may be imprisoned;

• and potentia I cri III inal records further disadvantaging persons I iving in poverty.

55. Furthermore, the rules state that where a person infected from COVID 19 dies, the body shall

be interred or cremated within 48 hours from the time of Death. This does not accord dignity of 29

to the dead and respect to their families. Furthermore, it fails to take to account the need for

investigation into the cause of death. The WHO, in its guidance note on In[ection Prevention

and con/roll or the safe management o[a dead body in the context o[COVID-19 has stated:

"Based on Cllrren/ evidence, the COVID-19 virus is transmitted between people through drop

lets. /hllli/es (lnd close contact, with possible spread through faeces. It is not airborne. As this

is u nell' )'ims 11lhose source and disease progression are not vet entirelv clear, more precau

tiol7s moy be 1Ised lin til further in/ormation becomes available:

ExcepL il1 cases o[hemorrhagic fevers (such as Ebola, Marburg) and cholera, dead bodies

are gel/emIl)' I/ot il/(ectious. OI1/v the lUl1gs o[patients wilh pandemic in(711enzo, i[hol7dled

iiuuuussis dl/rill?; 017 aulopsv, can be infectious. Otherwise, cadavers do not transmit disease.

11 is (/ COIIIIIIOI7 11I1'11z that persons who have died ora communicable disease should be cre

mated. b1l1 this is 1/01 true. Cremation is a matter orcultural choice and available resources,'

The di~l/itF (JUhe dead, their cultural and religious traditions, and their (amilies should be

res[Jected a/l(l protected tllrougllOut,'

Hast)' disposal ofil dead {i'om COVID-19 should be avoided;

Allthorities shollld manage each situation on {l case-by-case basis, balal1cing the rights o(

tlie [(lIni/v, tlie I/eed to investigate the cause o(tleath, and tile risks o(exposure to infection. "

• Absence o( Par/ial11entarp Approval

56. It is the Petitioners position that the Cabinet Secretary for health cannot purport to make law

with drastic penal consequences without recourse to Parliament; such actions amounts to a ex

ecuti ve fiat.

57. The Petitioner avers that the procedures, requirements and thresholds for passing subsidiary

legislation are provided for in The Constitution and Statute, which the Respondents chose to

ignore.

58, That whereas the Rules were Published on 6th of April 2020, the same have not been tabled


the 7th day. The same were published in the Daily Nation of 10th April 2020.

of 29


(http://www.kenyalaw.org/kenya_gazette/gazette/month/4/20201) and the Minister is in breach

of the rules requiring easy accessibility of a regulation or law in an intelligible manner that is

accessible to the general public.


61. The impugned Rules have been abused in so far as burial is concerned. The case of James Oyugi

is an example of atrocious conduct by public health authorities in handling the death and burial

of the said James Oyugi.

• Offences Ultra Vires the Statute

62. Section 36 of the Public Health Act, Cap 242, from which the Cabinet Secretary purports to

derive Authority to g, zette the Regulations, does not empower him to create offences and pre

scribe penalties. Regulation 11 is therefore ultra vires the empowering statute/the parent statute.

63. Additionally. and in the alternative, Regulation 11 which imposes "fine not exceeding twentv

thousand shil/inp,:l or to imprisonment for a period not exceeding six months or both" is ultra

vires section 31 (e) of the Interpretation and General Provisions Act, Cap 2. The Act provides

"there may be annexed to the breach of subsidiary legislation a penalty, not exceeding six Ih01l

sanc1.:)l.J.il/il1,'2;:l 01' such term of imprisonment not exceeding six months, or both, which the au

thority making the subsidiary legislation may think fit."

• Violation o(Socio Economic Rights Under Article 43

64. The Regula! ions negaii vely impact the lives and livelihoods of operators of passenger rail ser

vice. bus services. matatu services, taxicab services, motorcycle services, tricycle services, e

hai ling services as we II as those with ancillary businesses around the transport system without

measures to provide food rations to the individuals and families affected by the measures. The

omission to supply rations to individuals and families affected by the disruption of the transport

system is a violation of the Article 43 right to food and adequate living standards.

of 29

65. Further. the failure to provide the poor and vulnerable groups with face masks is a violation of

the right to health under Article 43.

• Vio/(ltiol/ oUlie Right to Fair Trial under Article 50(2)(111) o{the Constitution

66. In any case. while Regulation 11 prescribes a penalty for commission of offences under the

Regulations. no single part of the Regulations creates or defines any offence. Regulation 11

therefore violates the principle of legality under Article 50(2)(n) of the Constitution.

67. The impugned Regulation 11 violates all known principles on penal law, imposition of penal

sanctions: viz:

a, The maxim nulluin crimen sine lege certa (no crime without a precise law);

b. The maxim "1111/111171 poena sine lege" (no punishment without law) and

c. The maxim "nullum crimen sine lege" (no crime without law) - demands clarity and preci

siou of the criminal norm, The principle embodies an internationally recognized human

right and is also a fundamental rule of criminal law, [Refer to Aids Law Project v Attorney

General (2015/ ef(LR]

68. Moreover, the requirement that both private and public vehicles should not carry more than

50% of their licensed capacity is nol clear and is subject to misinterpretation by law enforce

ment officers. This is a clear and present danger, moreso aganst those with families; an institu

tion protected by the Constitution.

69, The vagueness in the Regulations impermissibly delegates basic policy matters to policemen,

prosecutors, and courts for resolution on an ad hoc and subjective basis, with the danger of

arbitrary and discriminatory arrest, prosecution and conviction.

RELIEFS SOUGHT

70. As a consequence of which, your humble PETITIONER prays for the following ORDERS:

uf 29

a) A DECLARATION be, and is hereby, issued that The Public Health (Covid-l v Restriction ofMovement ofPersons and Related Measures) Rules, 2020 dated 6th April 2020 are uncon

stitutional and of no legal effect for lack of public participation, vagueness in penal sanction

and non-cornplaincc with the express terms of the Statutory Instruments Act, 2013,·

b) All Order of CERTIORARI be, and is hereby, issued calling into this Honourable Court the

The Public Health (Covid-Iv Restriction of Movement of Persons and Related Measures)

Rilles. 2020 dated 6lh April 2020 for purposes of its being quashed and the same is quashed

herewith.

c) A DECLARAT10N that the duty to provide heathcare to vulnerable persons/ and or members

of the Kenyan society I ies solely on the State and that this duty cannot be delegated to persons

by way 0[· imposing a mandatory regulation to wear face masks without providing the said

face masks or reasonable/adequate/affordable access thereto.

d) A D£CLARATTON be, and is hereby, issued that the The Public Health (Covid-19 Re

striction of Movetnent of Persons and Related Measures) Rules, 2020 dated 6th April 2020 are

discriminatory to the poor/needy/vulnerable persons in the society in contravention of Article

27 or the Constitution on account of their failure to provide for means by which the

poor/needy/vulnerable persons in the society will acquire the face masks spelt out in Regula

tion 6 (I )( b) thereof

e) In the ALTERNATIVE to Orders a), b), c) and d) above, an ORDER be, and is hereby, issued COMPELLfNG the Respondents to:

i. supply affordable/free face masks to ALL vulnerable groups in the Kenyan society.

f) Any other relief that this honorable court deem fit to grant in the interests of justice and that

may become apparent and necessary in the course of these proceedings.

g) The costs of the peri tion be provided for.

~ DAT£D at NAIROBI this ~ clay of April 2020.

of 29


DRAWN & FILED BY: -

NAIROBI Tel. 0202')5/306/07277')7249 E-mail: ol11\\annl.olllbatirZiigl11ail.com

TO BE SERVED l)PON:

1. Cabinet Secretary for Health, Mr. Mutahi Kagwe, Af) a House, Cathedral road, P.O. 130x 300 I 6-00 I 00. NAmOBL ps'(I_h:;_D_L\lu2o.I'c:

2. The Honourable Auoruey General, AG's Chambers, Sheria House, Hararnbee Avenue, P.O. 130.\ -10 I 12-00 I 00 NAIRO[H CO!.!_lI)_l L11l i~a(i olls(Zra Qcgo. kc

3. Keuva National Commission on Human Rights CVS Plaza l " Floor, Kasuku Lane off Lenana Road, P. O. 110x: 74359-00200 NAIROBT hDk j·(i'knc,llr.Ol'Q

4. The Clerk of The National Assembly, Parliament Buildings, Purl iamcnt Road. NA II~OBI c Icrkj~Jlarl iaJ.:!J.s:_Dl.go. ke

of 29



LAW SOCIETY OF KENYA PETITIONERIAPPLICANT

-VERSUS-

ATTORNE Y GENERAL 1 st RESPONDENT CABINET SECRETARY FOR HEALTH, MUTAHI KAGWE 2J1d RESPONDENT

-AND-

KENYA NATIONAL COMMISSION FOR HUMAN RrGHTS 1s1 INTERESTED PARTY SPEAKER OF THE NA'TIONALASSEMBLY 2J1d INTERESTED PARTY

SUPPORTING AFFIDAVIT: MERCY WAMBUA (In Support OJ Petition And Application For Conservatory Orders)

I, MERCY WAMBUA a citizen of the Republic of Kenya and resident of Nairobi and of P. O. Box

72219-00200 Nairobi clo solemnly make oath and state as follows:

1. Being the Petitioner's Chief Executive Officer, and being familiar with the facts hereof, I am

competent to swear this affidavit in support of the Petition and Notice of Motion Application

for Conservatory reliefs.

2. I swear this Affidavit in support of the annexed Petition and Application

3. On [S_1!7_;112ri/ 2020, The President of Kenya, in a press conference, ordered the cessation of

movement into and out of Nairobi, Mombasa and Kwale counties. The order was to take force

in Nairobi Metropolitan areas on the same day at 7.00 pm for and on Wednesday 7pm for

Mornbasa and Kwale Counties.

I (I 1111 ex (l copy of the Presidential address dated 6th April, 2020 marked as MW-Ja and

MW-Jb is KNBS Report 011 Household survey

4. On tile same day, 6th April 2020, the Respondents issued/gazetted Legislation Public Health

(CO II) D 19 Restriction oj Movement oj Persons and Related Measures) Rules, 2020 through

Legal Notice No. 50 oj2020. The Regulations were not preceded by any attempt at any form

of public participation.

Page 2S of 29

[ annex (( cop)' ofthe gazetted rules dated tith April, 2020 marked as MW-2



the 7th day. The same were also published in the Daily Nation of I Olh April 2020.


(http://\\ ww.kcnyalnw.org/kenya_gazette/gazette/month/4/2020/) and the Minister is in

breach of the rules requiring easy accessibility ofa regulation or law in an intelligible manner


7. The l'ctitioner avers that the Regulations are unconstitutional because:

I. they are indirectly discriminatory against the very poor who cannot afford face masks; II. they were never subjected to any form of public participation; III. thc)' introduce a criminal penalty contrary to the statute and in vague terms; IV. they arc void for vagueness; and v. they were never approved by Parliament contrary to the Statutory Instruments Act.

8. Imposition of the mandatory requirement to wear masks under criminal sanctions without

provision of musks to vulnerable groups and the very poor who cannot genuinely afford the

masks is indirectly discriminatory and violates Article 27.

9. Further. restricting travel without measures to provide face masks to individuals and families

ad. crsely impacted by the restrictions thereof, violates the right to the highest attainable right

to heal til under A,., icle 43 a/the Const itut ion.

10. The result of this order was that many Kenyans were stranded and could not travel back.

Several of these were Kenyans who had left their counties to collect bodies of loved ones who

had died ill other counties.

11. The tact that these rules were gazetted on the very same day that they were notified to the

public means that the public was not informed of the rules and was not afforded time to read.

understand and engage the rules.

12. The nubli was also not given ample time to ensure they would not be found in contravention

Par-e 26 of 29 c>

of the rules including travelling back to their homes if they were outside the restricted areas

or procuring adequate face masks for their movement or presence in public places.

13. The actions and ornrnissions of the Respondents are contrary to the provisions of the Consti

tution. which provide for public participation as a national value and a fundamental human

right.

14. The lack of publ ic participation in the issuance of the impugned regulations renders them

invalid.

15. Further. the rules were gazetted without following the due procedure as stipulated in the Stat

utory Instruments Act 2013, which require reulation making authorities to undertake appro

priate consultations before making statutory instruments, establishing mechanisims to ensure

that statutory instruments are periodically reviewed.

16. The Act also states that the regulation making authority shall make appropriate consultations

with persons who are likely to be affected by the proposed instrument.

17. Section 11 of the Statutory Instruments Act states that Evel)' Cabinet Secretary responsible

for a regulation-making authority shall within seven (7) sitting da)ls a[ter the publication ora

stat utotv inslmll/enl, ensure that a copv o(the statutorv instrument is transmitted to the re

~jJunsible Clerk [or labling befOre Parliament. This was not done.

18. The Statotory Instruments Act also provide that, if a copy of a Statutory instrument that is

required to be laid before Parliament is not so laid in accordance with this section, the statutory

instrument shall cease to have effect immediately after the last day for it to be so laid.

19. The imposition of penal consequences, vide Regulation II of the Impugned regulations does

not meet thc requirements of Article 50(2){m) of the Constitution and the following principles

on imposi lion of penal sanctions:

a. The maxim nullum crimen sine lege certa (no crime without a precise law); b. The maxim "nullum poena sine lege" (no punishment without law) and c. The maxim "nullum crimen sine lege" (no crime without law) - demands clarity and

precision of the criminal norm. The principle embodies an internationally recognized

of 29

human right and is also a fundamental rule of criminal law. [Refer to Aids Law Project v Attorney General [2015J eKLRj


21. The impugned Rules have been abused in so far as burial is concerned. The case of James

Oyugi is an example of atrocious conduct by public health authorities in handling the death

and burial of the said James Oyugi.




(their vagueness and ex facie unconstitutionality notwithstanding) will be arrested, prosecuted


23. r depose this affidavit in support of the Application and Petition from facts within my

knowledge save for the information the sources whereof are otherwise disclosed. I believe the

affidavit to be in accordance with the Oaths and Statutory Declarations Act, Cap 20.

This 141h day of

]

l--H-~~A ~--=--=- ..:...A:..;p:.:.r=il __ 2020]

] ] ] ] ]

SWORN AT NAIROBI By the said MERCYWAMBUA

DH.AWN & FILED BY:-

NCHOGU, OMWANZA & NY ~~ A DVOCA::.:,T,:;;:.E;;::..:S '-=~ HAZI MO P. 80 NAIROBI Tel. 0202252306/0727727249 E-mail: omwanza.ol11bati(cj).gmail.com

of 29

TO BE SEHVED UPON:

I. Cabinet Secretary for Health, Mr. Mutahi Kagwe, Afya House, Cathedral road, P.O. 80x 30016-00100. NAmOB[ 12s!{i' heal til. !LO. ke

2. The Honourable Attorney General, AG's Chambers, Sherin House, Harambee Avenue, P.O. 1·3m: 40112-00 I 00 NAIROBI com III Ull icmions:haQ.go.kc

3. Kenya National Commission on Human Rights CVS Plaza I st Floor. Kasuku Lane off Lenana Road, P. O. Box: 74359-00200 NAIROBI hak jf(ii],nchr.org

4. The Clerk of The National Assembly, Parliament Buildings, Parliament Road. N, mOBI s;_Lcrk_{/_pa r I ia In ent. eo. ke

of 29

ADDRESS: H.E. UHURU KENYATTA, C.G.H, PRESIDENT AND COMMANDER-IN-CHIEF OF KENYA DEFENCE FORCES

OCCASI N: PRESIDENTIAL ADDRESS ON ENHANCED MEASURES IN RESPONSE TO THE COVID-19 PANDEMIC

VENUE~ STATE HOUSE, NAIROBI

DATE: 6TH APRIL, 2020

1

,.,. " ,j<. c.,," " ".a'''u . .JA.N .. j("'} . !,. '~d to in the annexed at1idavit ' .•.. It c \ ,

. ~~ ~.~~~ . ... , _ ., '"'t"'-. . _ t111's \ 1.1. day " worn b\ tort: \111. ••••••• L!';V .. ·. :* .. ' 20.<Jo ' 11nOb1, Kenya ...... : .. : .. : .. : :, .. ·:;·:: .. :·;·JrJ;;·;;::· ·i:;· ....

KENYA NATIONAl. BUHEAU OF SlATI~' 1(.$ AI :' ::... ."i" ", .'

WE E

KENYA GAZETTE Kenya Gazette Supplement No. -11

SPECIAL ISSUE 6th April, 2020

Kenya Subsidiary Legislation, 2020

(d) tricycles may carry goods and not more than one passenger: and (e) private vehicles shall not carry more than 50% of the licensed capacity.

(/.(').:/.\'/01/1\' SIfI)pll.'lIJ(,lIf No. 27) LEG,IL ~OTICE 1"0. 50

TilE PLUlIC HEALTII ACT I('''p 2-12)

THE PUIlLIC ur ·ILTH (COVID-19 RlS rRlC nox OF \'IOIEME'Jl OF PERSONS AND RELATED \H''''t RI"I RULES. 2020

IN EXERClSE of' the powers conferred by section 16 or the Public Health 1-\CI and in view of the serious threat posed to the health and lives of Kcnvans by the spread of the COVID~19 pandemic, the Cabinet Secretary for Health makes 11Il! following Rules-

THE PUBLIC HEALTH (COVID-19 RESTRICTIOl' OF MOVEMENT OF PERSONS AND RELATED MEASURES) RULES. 2020

I. These Rules may be cited as the Public Health (COVI D-19 Restriction of Citation. lovcment or Persons and Related \ lcnsures l Rult.:s 2020

Unless the context otherwise requires. III rhcsc Rules- Interpretation.

"commercial vehicle" has the meaning assigned III It ill the Tr:1I1ic Act.

"gathering" means any gathering. grouping. asscmbtv. crov d. or procession ill or on any public road or space, any building, place or premises. including \\ holly or panlv in the open air. and including any premises or place used for :iII) barber shop. massage parlor and beauty salon activities. g) rnnasium. spa. sporting. religion .... cultur.tl. political. acudeuuc. and fundraising purposes but does notmctude a market.

"market' means an~ public place used for the trade of food and farm produce. "infected area" means an area to which these Rules applv, as the Cabinet Secretary may. by order, dec! arc.

"law enforcement officer" means a police OIliCN :'\<111011.11 Go- emment Adnunistration Officer or medical officer or health,

"public place" means rilly outdoor. indoor, enclosed. 1)1' partiallv enclosed area which is open [0 the public or an~ part of the public, or to \\ hich members or the public ordinarily have access, and Includes a workplace and a public conveyance,

"restriction period" means the period specified lly 111 ... Cuhinet Secretary in the order declaring an area to be an infected area.

3. The Cabinet Secretary may, by order, declare these Rules to be ill force within Declaration of an area specified in the; order and such men shall be deemed 10 be an infected infected area.

4. nrburing the restriction period, there shall be no movement or persons into or Restriction of out of an infected area. either by road. rail or air. unless the movement into or movement of out ofan inf •. -cred area is for the purpo-,c ~H- persons

(:1.) u ausponauon of food and farm produce 11.'1 commercial purposes including rice, beans. mmvc. potatoes, cassava. cabll<lg~'~. 1,.1!~ xpiunch. tomatoes. onions, bananas. eggs, meal. fish, chicken, drury pIWitK!1:., U·,. ccrfcc. mira:! and ether Iood Items and farm produce

(b) transportation of all types of la» ful cargo nil;.] goods including construction material. fuel and pharmaceiaical products

(c) Ambulances transporting patients to Ih:.llth Facilities located within an infected area

(2) Provided that for purposes of sub-rule (I) -

(a) CCUlllllCrCI:1.1 vehicles 01 vessels 1.:1111·ling. or r"illllg an infected area for purposes of collecting rood and farm produce. ca.gc and good~. shall upon proof in writing, be deemed 10 be undertaking transportation of t'o,\d and 1:"11'111 produce. cargo and goods

(b) commercial vehicles or vessels including lonics .md pick-up trucks shall, in addition to food and tarrn produce, cargo ,IIHI .!_!lllxl..;:. cnnv only the driver ;1111.1 no more than three assistants.

(3) The persons referred to under sub-nile (::!) (h) herein ::..11:1.11 be designated in writing by the employer in Q manner that substautiallv correspond, wirh Form I set OUI in Schedule I and shall Oil demand by a law enforccmcmotficcr. Pf('l(\UCC the prcscnbcrt documentation.

(4) A person permitted to enter or exit an infected crea under sub-rule (I) or as the case may be, may be subjected to screening for l U\ II) -I c

(5) Any person \\ ho contravenes sub-rule ... (I). (:;), (.1) or provides false information, commus an offence.

5. (I) All public transport service, ",clu,ling passenger rail services. bus Restriction of services, matntu services, taxicab scr. ICC!'_ motorcycle services, tricycle transport services set vices, c-hailing services. arul air passenger transport services into or out otan infected area are prohibited during the restriction period.

(2) All private cars into or out of an infected area nu- prohibited during the restriction period. (3) During the restriction period. all public trau-port sen ices including passenger rail

services. bus services, matatu services. taxicab services, motorcycle services, tricycle services, e-hailing services and private ... ;11'!) 111:1:.' operate within an infected area subject to the following. conditions-

(a) passenger rail services. bus services. uuu.uu ~I'n ices, taxicab services and e-hailing services vehicles shall not carrv more th,1I1 ~OJ II of thcrr licensed capacity;

(b) motorcycles shall can)' only OI'IC paS'-ll.:lIl...CI ur glJotb. (c) bicycles !.hall carry only the rider.

(.:I) Users of public or private transport and public transport operators shall wear a proper mask that must cover the person's mouth and nose

(~) A person who contravenes sub-rules {I), (2), (3), or (4) commits an offence. 6. (I) Every person who is in a public place during the restriction period

shall- Hygiene conditions.

(a) maintain a physical distance of no less than one metre from the next person: and (b) lise a proper face mask that must cover the person's mouth and nose. (2) Every organisation, business entity. trader or vendor whether in a market or enclosed

premises shall- (a) provide at their business location or entrance to their premises, a handwashing

station with soap and water or an alcohol-based sanitizer approved for use by the Kenva Bureau of Standards.

(b) put in place measures to ensure that physical distance of no less than one metre is maintained between persons accessing or within their premises or business location; and.

(c) regularly sanitize their premises or business location. (3) A person who contravenes sub-rules (I) or (2) commits an offence.

7. (I) Save lor a funeral undertaken in accordance with sub-rule Prohibition of gatherings

(2), any gathering as defined under nile 2 is prohibited during the restriction period. (2) For purposes of these Rules. a funeral shall not be regarded as a prohibited gathering

provided that- (a) attendance at the funeral shall be limited to fifteen people; (b) night vigils shall not be held in relation to a funeral; (e) hygiene conditions under rule 6 arc adhered to; and (d) all the conditions under rule 8 (I) or the Public Health (Prevention, Control and

Suppression of (,OVlD-1 9) Rules. 2020 arc adhered to. (3) A persoll who contravenes sub-rule (I) commits an offence

8. Where a person infected with COVID-19 dies, the body shall be interred or cremated within forty-eight hours from the lime of death.

9. A person who contravenes either rules 4 (I), (2), (3) or 5 (I), (2), (3), (4) may have their vehicle detained in a police station

or any other place as the Inspector-General of the National Police Service may designate, pending their arraignment in court and/or for the duration of the restriction period.

10. The Cabinet Secretary may exempt any person from the provisions of the Rules on such tenus and conditions as he shall certify in writing.

II A person who commits nn offence under these Rules shall, 011 conviction. be liable to il line not exceeding twenty thousand shillings or to impnsontuent for a period not exceeding six months or both.

Disposal of bodies.

Detention of Motor Vehicle.

Exemption

Penalty.

SCHEDULE I Form I

I,.. .. . (Full name) of National Identity Card number... ... and telephone number hereby certify thai our employee named below provides

........... service being a service exempted under nile 4 (I) of the Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) Rules, 2020.

Full uame of employee

National Identity Card number

Residential area and details (Estate, location. street)

Job description Telephone number

Purpose of the trip Assigned motor vehicle's registration number

Origin and destination ofthe vehicle Nature of cargo

tgned at .• on uus . ... day 0 - zu. lA I A ~

1111< is the cx[iit,'t', marked ·'.1~\1t:~ .. :: Q_ Institution/ business/entity.

Physical address ..

Ufficial stamp of institution .

I E("II 'OnCE 1\0 5 I 1111 I'LII\I.I(" I-IE,\LTII"CT

II '({/I, :!-t2)

TI-IE PUBLIC HEALTH (COVID-19 RESTRICTION OF ~IOVE~IENT OF PERSONS AND RELATED ~'IEASURES) ( AIROIlI \IE1 ROI'OLlTA:-': AREA) ORDER, 2020

EXERCISE of the powers conferred bv Sccuon 3(1 of the Publtc Health Act and Rule 3 of the Public Health (Restriction of Movement or P(!r~nn'i and Related Measures) Rules 2020.

the Cabinet Secretary for I 1t.;;IIIll lIlilkt''' the fellow Ing Order-s- THE PUBLIC 1-lloALTH (COVID-19 RES !'RIC TII)I\ OF \IOI-Ei\IENT OF PERSONS A"D RELATED \IEASURES) (NAIROIlI \IETI\OPOLI rAN .-IREA) ORDER, 2020

Tlus Order rnav be cited as the Publtc He.nth CO\'1O-19 Restriction of r-.lovclllcnt of Citation. Persons and Related Measures) (Nairobi :'.1t.:lrOpolitclll/\rea) Order. 2020

2. 111 tlus Order. unless the context orhcr« ise rcquu'cs-c- Interpretation

"Nairobi detropoliran Area" means Nairobi City Couory cud all the adjoining areas mctuding Part of Ktnmbu County up to Chania River Bndge (Fhikn), including RilOIH 'v.lcu.lcru. Kt.unbu Town, Parr of Machakos Countv, I1p to Athi-River Including Knt.nu P'irt \11' Knjiado Count', including lsiuya. Kisenan. Oug,na Rcngai and Ngong 1'1,.1\\11 ,IlH! ,til «rher areas a, delineated on the ruup set out III Schedule I

The Public llenlth (COV10-19 Rcstncuon or vrovcmcm or 3 Persons and Related Measures) Rules. 2020 shall be in force III the (\ailllbl xterropo'nan Aren for twenty-one dnv s \\ Ith effect from 1900HRS on Moudav 6 April .-:020 until 23S91IHS 011 Monday 27 AI;n12020

~('lllol)l'LE I

LEG,IL :--ll'IICI: 00 5:: THE PI '1l1.lC IIE,II Til ,\('T

If ',II'. 2..t.:l

THE PUBLIC HEALTH (COVID-19 RLSTIUCTIO:-': OF ~IO\,EMENT OF PERSONS AND RELATED MEASURES) (~IO,IIlAS,1 COU:--ITY) ORDER, 2020

IN EXERCISE of the powers conferred bv Section 3(1 of lilt! Public Health .vcr and Rule 3 of the Public llcalth (Restriction of Movement or P~I:-Oll,) and Related Measures) Rules 2020, the Cabinet Secretary for Health makes the follo\\l!lt! 0.<ll'1-

:HE PUBLIC HEALTH (COVID-19 RFSTRI(' 11,):-': 01, \IOI'E~IENT or PERSONS AND RELATED MEASURES) 1\lmlll 1<;,1 COUNTY) ORDER, ~020

I. This Order 11l~) be cited as the Public 11l'~IJlh (('()\'JO-19 Restriction of'Movemeru Citation. of Persons lind Related Measures) (.\ IOIll!1:rS:1 COLlIlI),) Order. 2020

In this Orderunless the context other vr-,v 1\'qt.l!l':- "Mombasa County" means that area (O'.l'lint' vlombasa County and all tile adjcimng areas as delineated on the map set ruu In Schedule I The Public Health (COVID-19 RC:-l;i(;',lll I' xlov emcm of Persons and Relat.ed Measures) Rules. 2020 shall be in force III \!t)llIb,I!):1 County for twenty-one days with effect from 1900HRS on wednesd.r, S '\l!lil ~O:-!I) until ~35911RS VII Wednesday 29 April ::O:W

Interpretation

~lIILDI '1.1: I

LEGAL NOTICE NO 53 THE PUI3L1C I-IEALTH I\('T

(Cap. 242)

THE PUBLIC HEALTH (COVID-19 RESTRICTION OF MOVEMENT OF PERSONS AND RELATED MEASURES) (KILIFI COUNTY) ORDER, 2020

IN EXERCISE of the powers conferred by Section 36 of the Public Health Act and Rule 3 of the Public Health (Restriction of Movement of Persons and Related Measures) Rules 2020, the Cabinet Secretary for Health makes the following Order-

THE PUBLIC HEALTH (l'OVID-19 RESTRICTION OF MOVEMENT OF PERSONS AND RELATED MEASURES) (KILIFI COUNTY) ORDER, 2020

I. This Order may be cited as the Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) (Kilifi County) Order, 2020

In this Order. unless the context otherwise requires-

Citation.

Interpretation

"Kilif County" means that area covering Kilif County and all the adjoining areas as delineated on the map set out in Schedule I.

3. The Public Health (COV!D~ 19 Restriction of Movement of Persons and Related Measures) Rules, 2020 shrill be III force in Kilifi County for twenty-one days with effect from 1900HRS on Wednesday 8 April 2020 until 23S9HRS 011 Wednesday 29 April 2020

SCHEDULE I

I I

I LEGAL NOTICE NO_ S4

THE PUBLIC HEALTH ACT (Cap 242)

THE PUBLIC HEALTH (COVID-19 RESTRICTION OF MOVEMENT OF PERSONS AND RELATED ~IEASURES) (KWALE COUNTY) ORDER, 2020

IN EXERCISE of the powers conferred by Section 36 of the Public Health Act and Rule 3 of tile Public Health (Restriction or Movement of Persons and Related Measures) Rules 2020, the Cabinet Secretary for Health makes the following Order-

THE PUBLIC HEALTH (COVID-19 RESTRICTION OF MOVEMENT OF PERSONS AND RELATED MEASURES) (KWALE COUNTY) ORDER, 2020

l. This Order may be cited as the Public Health (COVID-19. Restriction of Movement of Persons and Related Measures) (Kwale County) Order. 2020.

Citation.

2. In this Order, unless the context otherwise requires- "Kwale County' means tl1:1.1 area covering Kwale County and all the adjonuug :lrCJS as delineated on the map set out in Schedule I.

3. The Public Health (COVID-19 Restriction of Movement of Persons and Related Measures) Rules, 2020 shall be in force in Kwale County for twenty-one days with effect from 1900J-IRS on Wednesday 8 April 2020 until 2359HRS 011 Wednesday 29 April 2020.

Interpretation

SCHEDULE I

'~"I I

I~~;,::: ..... j ,".,l9 M:::_ "-::J I

Dated the 6th April, 2020,

MUTtlHI KAGWE, Ctlbillet Secretaryfor Health.

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