Today, the Law Society of Kenya reports that the Chief Justice (CJ) Dr. Willy Mutunga has made Practice and Procedure Rules for enforcement of the Bill of Rights under Article 22(3) as read with Article 23 and Article 165 (3) (b) of the Constitution of Kenya. A copy of these Practice and Procedure Rules (hereafter “Mutunga Rules”) is available here.
Jurisprudentially, the Mutunga Rules mark the beginning of a new era in the determination of constitutional questions by the courts of Kenya. From as far back as the Gibson Kamau Kuria vs Attorney General case of 1988, the courts relied on the absence of such rules made by the CJ to argue that they lacked jurisdiction to enforce rights and fundamental freedoms that were alleged to have been denied, violated, infringed or were threatened.
The right to property is one of the fundamental rights guaranteed under the Constitution of the Republic of Kenya. The said right was protected by Section 75 of the former Constitution. As discussed elsewhere, the 2010 Constitution in Article 40 read with Article 260 fundamentally transformed the right to property by extending its definition of property to cover both real property and intangible property rights such as IP rights. Article 40(6) also imposes a positive obligation on the State to support, promote and protect the IP rights of the people of Kenya.
Read the rest of this article over at the CIPIT Law Blog here.