Renovated Nairobi State House

The High Court has affirmed the protected status of State Houses and State lodges across the country after dismissing a petition challenging the legality and constitutionality of orders designating the presidential residences as protected areas.

In a judgment delivered on Friday by Justice Roselyne Aburili on behalf of Justice Chacha Mwita, who has since been elevated to the Court of Appeal, the court ruled that Operation Linda Jamii had failed to demonstrate the alleged constitutional violations in the orders.

The petition challenged Legal Notice No. 433 of 1989, which designates various State Houses and lodges as protected areas, as well as Legal Notice No. 199 of 2020 concerning Kisii State Lodge.

The civil society group challenged the legal basis for designating the presidential residences, which are used by the President as official residences when visiting different parts of the country.

However, Justice Mwita found that the petitioner had not challenged the constitutionality of the parent legislation, the Public Order Act, or demonstrated how the disputed orders violated the Constitution or the law under which they were issued.

The judge observed that it was not enough for a party to allege that a law was unconstitutional or invalid without demonstrating the specific inconsistencies.

“There must be demonstration that the impugned law is inconsistent with the Constitution and therefore that Article 2 sub-article 4 of the Constitution invalidates that law,” the judge stated.

“In the present case, the petitioner did not demonstrate that the impugned legal notices had any constitutional infirmity.”

The court also noted that Operation Linda Jamii had not sufficiently demonstrated that the orders were inconsistent with the parent Act under which they were enacted.

Regarding Legal Notice No. 199 of 2020, which concerns Kisii State Lodge, the judge observed that the petitioner had not explained the alleged failure to comply with the Statutory Instruments Act in a manner that would enable the court to examine the alleged violations.

The judge emphasised that anyone challenging a law must demonstrate how it violates the Constitution or other applicable laws, rather than make general allegations of illegality or unconstitutionality.

In reaching his decision, Justice Mwita also referred to the Supreme Court of Canada's decision, which addressed the importance of examining the purpose of legislation when determining constitutional questions.

The judge concluded that the petitioner had failed to prove the alleged unconstitutionality of both the 1989 protected areas order and the 2020 order concerning Kisii State Lodge.

“Consequently, the petition is declined and is dismissed,” the judge ruled.

The decision leaves the challenged orders in force, maintaining the designation of the affected presidential residences as protected areas.