Attorney General v Kituo Cha Sheria & 3 others
The bottom line
#Kenya's Court of Appeal confirmed that refugees may live in cities, not just camps, and government security directives cannot override their constitutional rights.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge misapprehended the provisions of Article 39 of the Constitution as they relate to refugees
- 2.Whether the learned Judge misinterpreted the provisions of Article 2(5) and (6) on the applicability of international refugee law to Kenya
- 3.Whether the learned Judge erred in holding that the State had not satisfied the criteria for limitation of rights under Article 24
- 4.Whether the learned Judge erred in quashing the directive
Key legal issues
#Scope of Article 39 rights for non-citizens
Freedom of movement belongs to every person; only entry, remaining and residence anywhere in Kenya is reserved to citizens; the State may impose reasonable conditions on non-citizens but cannot exclude refugees from residing anywhere.
The court read Article 39 purposively under Article 259(1): clauses (1) and (2) apply to every person, clause (3) to citizens. Reading clause (3) as barring all non-citizens from residence would be absurd. Refugees' residence rights arise from Article 19(3)(b) and the domesticated 1951 Convention (Article 26) and ICCPR Article 12, subject to reasonable, non-arbitrary limitations.
Whether the Refugees Act mandates encampment
No express or implied requirement that all refugees reside in camps; section 17 merely creates the office and duties of a refugee camp officer.
The court applied the plain-language principle: had Parliament intended compulsory encampment it would have said so. Section 17 lists the camp officer's functions - an administrative checklist, not a normative residence rule. The Minister's power under section 16(2) to designate camps is permissive, not a mandate that refugees live there.
Status of international law under Articles 2(5) and 2(6)
Articles 2(5) and 2(6) create two distinct but interrelated regimes; customary international law and ratified treaties form part of Kenyan law and are fully binding; non-refoulement is a customary norm acquiring jus cogens status.
The court distinguished general (customary) international law from treaty law, holding both binding as part of Kenyan law by constitutional pronouncement. Reviewing instruments, scholarship and State practice, it endorsed the High Court's finding that non-refoulement is customary international law, citing UNHCR and Executive Committee materials and academic writing on its jus cogens character.
Whether the State satisfied Article 24 limitation criteria
The State failed to justify the encampment directive; the security rationale was speculative with no nexus established between refugees and grenade attacks, and less restrictive means existed.
Limitation must be by law, reasonable and justifiable in an open democratic society, with the burden on the State. The State's averment that encampment promoted refugee welfare contradicted its characterization of refugees as criminals. No evidence linked refugees to the grenade attacks; the sweeping, indiscriminate policy failed rationality and proportionality, and national security cannot trump Bill of Rights scrutiny per Article 238(2).
Dignity, fair administrative action and consultation
The directive violated Articles 28 and 47; Government was obliged to consult stakeholders before making policy directly and greatly affecting refugees.
Rounding up some 18,000 persons into Thika Municipal Stadium before encampment was ominous in intent and demeaning in effect, striking at dignity. No meaningful consultation occurred - paternalistic unilateralism falling short of Article 47's requirements of lawful, reasonable, procedurally fair administrative action and Article 10 national values of public participation.
Legal principles established
#- Article 39(3) reserves to citizens the right to enter, remain and reside anywhere in Kenya, but its express application to citizens does not mean non-citizens cannot enter, remain or reside anywhere in Kenya; refugees' rights of movement and residence derive from Article 39(1), Article 19(3)(b) and domesticated international law.
- The Refugees Act does not require all refugees and asylum seekers to reside in refugee camps; section 17 is merely an administrative checklist, not a normative residence requirement.
- The principle of non-refoulement is a norm of customary international law, progressively acquiring jus cogens status, and binds the State under Article 2(5) and (6) of the Constitution.
- Limitation of rights under Article 24 must be by law, reasonable and justifiable, with the burden of justification discharged by the State on an evidence-based path of reasonableness and proportionality; national security cannot insulate governmental action from scrutiny.
- Government has a legal obligation to consult the public and stakeholders in making and implementing public policy affecting refugees, grounded in Articles 10, 28 and 47.
Court orders
#- 1.Appeal dismissed in entirety
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Two consolidated petitions (numbers not stated in judgment)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1) invoked); appeal from High Court constitutional petition
Relief refused
#Appellant's prayer to set aside the High Court judgment quashing the encampment directive
Directive violated freedom of movement, dignity, fair administrative action and the non-refoulement principle; State failed to justify limitation under Article 24
Costs
No order as to costs (each party to bear own costs)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We accordingly dismiss it in entirety but make no order as to costs.
We think at once that such a conclusion would on the face of it be absurd and is not borne out by the text itself.
It is an administrative checklist at most, and definitely not a normative statement of where refugees should reside.
the principle of non-refoulement was in fact progressively acquiring the character and status of jus cogens, a peremptory norm of international law.
rights and fundamental freedoms cannot be suspended or abrogated by the Government in the name of national security and escape interrogation by the courts if moved.
I find and hold that there is a legal obligation to consult the public in making and implementing public policy affecting refugees.
The theme is maximization and not minimization; expansion, not constriction; when it comes to enjoyment and, concomitantly facilitation and interpretation.
Issues in the judgment
#High Court judgment date typo in header
Inconsistent year for press release in disposition section
Convention year misstated in counsel's submission
Inconsistent domestication section cited
Number of second-respondent petitioners stated inconsistently
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Kituo Cha Sheria & 3 others", Case Analysis (2017). Civil Appeal 108 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/773/eng@2017-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.