Ali Said Chizondo & 2 Others v Republic
The bottom line
#Kenya's High Court ruled that a single judge can hear cases where people claim their constitutional rights were violated, not just three-judge panels.
What this practically means
#Executive summary
#Key legal issues
#Nature of the reference - interpretation or enforcement of rights
The reference was one of enforcement of fundamental rights under section 84(3), not constitutional interpretation under section 67(3), and counsel for both sides agreed.
The court distinguished the High Court's three types of constitutional jurisdiction: original jurisdiction under section 84(1), referral jurisdiction for interpretation under section 67(1), and referral jurisdiction for enforcement of rights under section 84(3). The question referred concerned an alleged contravention of the freedom of assembly and association under section 80, not the meaning of a constitutional provision, so the three-judge requirement in section 67(3) was inapplicable.
Quorum for hearing a section 84(3) reference
A single judge may competently exercise the referral jurisdiction under section 84(3); the three-judge practice is conventional, not mandatory, in such cases.
The Constitution prescribes no quorum for enforcement applications under section 84(1) or references under section 84(3), so the normal complement of a single judge suffices. The practice of Chief Justices empanelling three judges ('constitutional court') rests on the gravity of the questions and conventional wisdom, and should continue as a matter of practice except where it is wrongly applied to enforcement questions. Whether one or three judges sit depends on the gravity of the individual case.
Complaint about absence of rules under section 84(6)
The learned Judge's lament about the lack of rules of practice and procedure was misplaced because elaborate procedures already exist.
Following Jaundoo v Attorney-General of Guyana, where neither the rule-making authority nor Parliament has made procedural rules, the right to apply for redress is wide enough to be invoked by any form of procedure by which the High Court can be approached. Plaints, Order 53 and originating motions already exist, so further rules would add little.
Legal principles established
#- The quorum of the High Court when exercising referral jurisdiction under section 84(3) for enforcement of fundamental rights and freedoms is a single judge; a three-judge bench is mandatory only for constitutional interpretation under section 67.
- Where the Constitution provides for an application without prescribing its form, the application may be made in any manner by which the court can be approached.
- A person alleging contravention of fundamental rights under sections 70 to 83 may invoke the High Court's jurisdiction by plaint, Order 53 of the Civil Procedure Rules, or originating motion, depending on the relief sought.
Court orders
#- 1.That the referral jurisdiction in the case can competently be exercised by a single judge
- 2.That the question referred to the High Court by the Chief Magistrate be heard and determined by a single Judge on a date to be fixed by the parties at the Registry at Mombasa High Court
- On appeal from
- High Court of Kenya (Mombasa), Ang'awa, J., on a reference from the Chief Magistrate's Court, Mombasa
- Criminal case before the Chief Magistrate, Mombasa (Mr. Muchelule)
- Jurisdiction invoked
- Sections 67(1), 84(1), 84(3) and 84(6) of the Constitution of Kenya (repealed); the Chief Justice giving directions on a constitutional reference referred under section 84(3)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali Said Chizondo & 2 Others v Republic", Case Analysis (1998). Constitutional Reference from Mombasa Chief Magistrate's Court Criminal Case (charge under section 79 of the Penal Code). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/10/eng@1998-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.