Fundamental rights and freedoms may not be limited

Chapter 4: The Bill of Rights

Part 1 - General provisions relating to the Bill of Rights

Article 25 of the Constitution of Kenya 2010 

Fundamental rights and freedoms may not be limited

1. Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited-
   
   1. Freedom from torture and cruel, inhuman and degrading treatment or punishment;
   2. Freedom from slavery and servitude;
   3. The right to a fair trial; and
   4. The right to an order of habeas corpus.

Enforcement of Bill of Rights

Chapter 4: The Bill of Rights

Part 1 - General provisions relating to the Bill of Rights

Article 22 of the Constitution of Kenya 2010

Enforcement of Bill of Rights

1. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or it is threatened.
2. In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-
   
   1. person acting on behalf of another person who cannot act in their own name;
   2. person acting as a member of, or in the interest of, a group or class of persons;
   3. person acting in the public interest; or
   4. association acting in the interest of one or more of its members.
3. The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that-
   
   1. the rights of standing provided for in clause (2) are fully facilitated;
   2. formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
   3. no fee may be charged for commencing the proceedings;
   4. the court, while observing the rules of natural justice, shall no be unreasonably restricted by procedural technicalities; and
   5. an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.
4. The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this Article, and to have the matter heard and determined by a court.

Application of Bill of Rights

Chapter 4: The Bill of Rights

Part 1 - General provisions relating to the Bill of Rights

Article 20 of Constitution of Kenya 2010 

Application of Bill of Rights

1. The Bill of Rights applies to all law and binds all State organs and all persons.
2. Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedoms.
3. In applying a provision of the Bill of Rights, a court shall-
   
   
   1. develop the law to the extent that it does not give effect to the right or fundamental freedom; and
   2. adopt the interpretation that most favours the enforcement of a right.
4. In interpreting the Bill of Rights, a court, tribunal or other authority shall promote-
   
   1. the value that underlie an open and democratic society based on human dignity, equality, equity and freedom; and
      
   2. the spirit of, purport and objects of the Bill of Rights.
      
5. In applying any right under Article 43: Economic and social rights
   , if the State claims that it does not have the resources to implement the right, a court, a tribunal or other authority shall be guided by the following principles-
   
   1. it is the responsibility of the State to show that the resources are not available;
   2. in allocating the resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and
   3. the court, tribunal or other authority may not interfere with a decision by the State organ concerning the allocation of available resources, sorely on the basis that it would have reached a different conclusion.