The doctrine of locus standi, or legal standing, determines who is entitled to bring a matter

before the court.

Pre-2010 Legal Framework: Restrictive Common Law Approach

At independence, Kenya inherited English common law principles, including the strict rules of
standing. Under traditional English law, a private individual could only enforce a public right if
they could show special personal damage beyond that suffered by the general public1 Otherwise,
only the Attorney-General could sue on behalf of the public. Kenyan courts embraced this rule,
treating it as a “fundamental principle” that public rights could only be litigated by the
Attorney-General.

The pre-2010 Kenyan courts required locus standi claimants to demonstrate a personal,
proprietary, or other direct interest in the matter.2

Post-Independence Period (1963–2010)

Kenya's legal system largely mirrored the British common law framework, which imposed
restrictive standing requirements. Only individuals who could demonstrate a direct, personal
interest in a matter were granted standing to seek judicial review. 3

The promulgation of the 2010 Constitution marked a pivotal shift in Kenya's legal landscape.4
Recognizing the need to enhance access to justice and promote public interest litigation, the
Constitution introduced expansive provisions which include5:

 Article 22(1): Empowers any person to institute court proceedings claiming that a right or
fundamental freedom in the Bill of Rights has been denied, violated, infringed, or
threatened.
 Article 22(2): Allows proceedings to be instituted by:
 A person acting on behalf of another who cannot act in their own name.
 A person acting as a member of, or in the interest of, a group or class of persons.
 A person acting in the public interest.

1
https://www.saflii.org/za/journals/AHRLJ/2014/25.pdf#:~:text=Court%20had%20held%3A
%20It%20was,inflict%20special%20damage%20on%20him
2
https://www.ahrlj.up.ac.za/skelton-a-mutu-p#:~:text=rules,8
3
https://katibainstitute.org/court-of-appeal-baptises-the-rules-of-locus-standi-in-the-river-of-
constitutionalism/
4
https://erepository.uonbi.ac.ke/bitstream/handle/11295/98393/Ochiel_Transformation
%20Of%20Judicial%20Review%20In%20Kenya%20Under%20The
%202010%20Constitution.pdf?isAllowed=y&sequence=1
5
https://kenyalaw.org/caselaw/cases/view/84167/
  An association acting in the interest of one or more of its members.
 Article 258(1): Provides that every person has the right to institute court proceedings
claiming that the Constitution has been contravened or is threatened with contravention.

These provisions effectively dismantled the previous restrictive approach, enabling broader
participation in the enforcement of constitutional and legal norms.

Judicial Decisions (Post-2010 Constitution)

Randu Nzai & 2 Others v. Internal Security Minister & Another (2012)

The facts of the case are as follows; the appellants, Randu Nzai and others, described themselves
as former officials of the defunct Mombasa Republican Council (MRC). They stated that they
represented the interest of the residents and stakeholders of the six coastal counties (Mombasa,
Kwale, Kilifi, Tana River, Lamu and Taita Taveta). They sought to challenge the review of
names, boundaries, constituencies and wards by the electoral body and stated that such review
would disenfranchise them as they did not participate in the process leading to their creation.
They also sought among other things, an order to compel the Independent Electoral and
Boundaries Commission (IEBC) to facilitate and conduct a referendum on the question of self-
determination of the indigenous residents in the coastal region.

The state counsel argued that the appellants lacked locus standi to bring the originating notice of
motion under the umbrella of MRC, “an unregistered, illegal and unlawful society”. They further
stated that for the court to entertain the motions filed by the appellants, it would be tantamount to
offering legitimacy and recognition to an illegal and proscribed organization.

The High Court in rendering its decision considered that the appellants qualified as “persons” by
virtue of Article 260 of the constitution. However, the court held that under Article 22, they did
not fit any of the 5 categories of persons authorized by the constitution to institute court
proceedings to challenge violation or threatened violation of rights or fundamental freedoms in
the Bill of Rights. The court stated that they could not be constituted as a “group” or “class”
under Article 258 (2)(b). The High Court stated that “MRC not being registered, or not pursuing
the process of registration or exemption from registration, lacks legal capacity. As such, it has
brought the motions before us prematurely and without the legal capacity to do so….we hold that
neither the applicants as individuals acting on behalf of MRC, nor the MRC as an unregistered,
amorphous body espousing an unconstitutional agenda, has either the locus standi or the legal
competency to bring the originating motion or the interlocutory motion or to be entitled to pursue
the reliefs sought.”

It is this decision that attracted the Appeal.

On appeal, Ouko J.A showed that Article 22 and 258 had in essence moved away from this very
conservative approach to litigants and had evolved and broadened under the new constitution.
Referencing the case of Mumo Matemu v Trusted Society of Human Rights Alliance and
Another, Civil Appeal no 290 of 2012 in which the court then held that the stringent locus
standi requirements have been buried in the annals of history. In his words “The constitution
today gives standing to any member of the public who is not a mere busy-body or a meddlesome
interloper, and who acts in good faith to institute proceedings challenging any violations under
the Bill of Rights.”

The Court of Appeal upheld the right of every person to enter the courts unrestrained and be
availed the instruments of justice thus the High Court decision was overturned.6

Mumo Matemu v Trusted Society of Human Rights Alliance and Another (2013)

Summary: In 2012, the Trusted Society of Human Rights Alliance, a non-governmental

organization, challenged the appointment of Mr. Mumo Matemu as the Chairperson of the Ethics
and Anti-Corruption Commission (EACC). The organization alleged that Mr. Matemu was unfit
for the position due to past conduct during his tenure at the Agricultural Finance Corporation
(AFC), including approving loans without proper security and involvement in questionable
financial transactions. They contended that these actions raised integrity concerns, making him
unsuitable to lead the EACC, an institution mandated to combat corruption.7

The High Court initially upheld the petition, declaring Mr. Matemu's appointment
unconstitutional. However, upon appeal, the Court of Appeal addressed several issues, including
the locus standi of the Trusted Society of Human Rights Alliance. The Court of Appeal
recognized that, under the Constitution of Kenya 2010, specifically Articles 22 and 258, any
person or organization has the right to institute court proceedings claiming that the Constitution
has been contravened or is threatened with contravention. This provision allows for public
interest litigation, enabling bodies like the Trusted Society of Human Rights Alliance to
challenge appointments to public office without demonstrating a direct personal injury. 8

The Court of Appeal's recognition of the Trusted Society's standing to challenge Mr. Matemu's
appointment underscores a significant shift towards a more inclusive approach to legal standing.

6
https://kenyalaw.org/caselaw/cases/view/84167/
7
https://kenyalaw.org/caselaw/cases/view/136327/
8
https://durham-repository.worktribe.com/OutputFile/1652425