## Facts

- In March 2020, after Kenya recorded its first COVID-19 case, the national government announced emergency public-health steps intended to reduce contact between people.
- One measure was a nationwide night curfew, announced to run from 7:00 p.m. to 5:00 a.m., issued through **Legal Notice No. 36 of 2020**, the **Public Order (State Curfew) Order, 2020**, made under the **Public Order Act (Cap. 56)**.
- The **Law Society of Kenya (LSK)** filed **Petition No. 120 of 2020 (COVID 025)** in the High Court at Nairobi against national officials, including **Hillary Mutyambai (Inspector General, National Police Service)**, the Cabinet Secretary for Interior, the Cabinet Secretary for Health, the Attorney General, and the Chief Justice.
- LSK argued that the curfew and related governmental action unlawfully limited constitutional freedoms (including movement and assembly) and failed to meet constitutional and statutory requirements governing delegated legislation, including demands for legality, clarity, and proper procedure.
- LSK also challenged how the curfew was enforced in its early days, alleging that police used excessive force and subjected members of the public to degrading treatment, including incidents resulting in serious injury and death.
- The case was handled on an urgent basis. On **30 March 2020**, the court issued ex parte directions aimed at preventing harm while the petition was pending, including directions tied to the conduct of curfew enforcement.
- After expedited hearing, the High Court delivered a merits judgment on **16 April 2020** addressing the curfew’s legality and constitutionality and the constitutionality of its enforcement. A later application by the respondents seeking a stay was dismissed on the basis that the High Court could not stay its own final judgment.

## Issues

1. Whether Legal Notice No. 36 of 2020 imposing the night curfew was ultra vires the Public Order Act or unconstitutional for failing to meet constitutional and statutory requirements governing rights-limiting delegated legislation.
2. Whether the curfew amounted to an unjustified limitation of constitutional rights and freedoms under Article 24 of the Constitution, including freedom of movement and related liberties.
3. Whether the National Police Service’s manner of enforcing the curfew—through alleged brutality, unreasonable force, and degrading treatment—violated constitutional protections, including the rights to life, dignity, and freedom from cruel, inhuman, or degrading treatment.
4. Whether some prayers directed at the Chief Justice and the Judiciary were improper in light of separation of powers and judicial independence.

## Decision

- The court held that the government could, in response to COVID-19, impose a night curfew under the Public Order Act as a public-health measure, and that a curfew was not unconstitutional merely because it limited movement and assembly.
- Applying Article 24, the court concluded that the curfew—once expressed with sufficient clarity as to its operation (including precise hours) and treated as a time-bound public-health intervention—was capable of meeting constitutional standards for a reasonable and justifiable limitation of rights.
- The court found that violent or degrading enforcement was unlawful and unconstitutional. A lawful curfew did not permit police to inflict violence, act unprofessionally, or treat the public in a degrading manner.
- The court issued declaratory and supervisory relief aimed at ensuring that curfew enforcement complied with the Constitution and the National Police Service’s obligations, including directions that enforcement be carried out without unreasonable force and with respect for human dignity.
- The court declined to grant relief that would improperly direct the Chief Justice on internal judicial administration, noting limits created by separation of powers and judicial independence.

## Legal Principles

- Constitutional rights may be limited only under **Article 24**: the limitation must be prescribed by law, pursue a legitimate aim, and be reasonable and justifiable in an open and democratic society when measured against proportionality factors.
- Delegated legislation that limits rights must be grounded in lawful authority and must be stated with sufficient clarity so the public can understand what conduct is prohibited and when restrictions apply.
- Emergencies and public-health threats do not suspend the Constitution; state power remains constrained by constitutional standards of legality, reasonableness, and accountability.
- Police powers must be exercised in compliance with constitutional guarantees, including protection of life, dignity, and freedom from cruel, inhuman, or degrading treatment, and with the professionalism and discipline required of the National Police Service.
- Courts may grant effective constitutional remedies, including supervisory directions, where needed to prevent ongoing or likely rights violations in the implementation of a lawful public measure.

## Conclusion

In **Law Society of Kenya v. Mutyambai**, the High Court upheld Kenya’s COVID-19 night curfew as a legally authorized, constitutionally permissible public-health restriction when formulated with clarity and applied in a proportionate, time-bound manner, but held that brutal curfew enforcement violated constitutional rights and warranted court-directed measures to ensure humane, lawful policing.


Law Society of Kenya v. Mutyambai, No. 120 of 2020 (2020)