In a judgment of 3 December 2021, the Supreme Court of Kenya rejected the appeal filed against a decision of the Nairobi Court of Appeal.
In the judgment, the Supreme Court of Kenya rejected the appeal filed against a decision of the Nairobi Court of Appeal, against the Inspector General of Police and two others and which also sees Kenya National Human Rights and Equality Commission as interested parties, concerning the declaration of unconstitutionality of articles 8 and 9 of the law on public order, on the basis of which the President, through the Cabinet Secretary of the Ministry of the Interior and the Coordination of the National Government, has continuously issued numerous night curfew orders, starting from 2020 with the aim of stemming the spread of Covid-19.
According to the applicant, the continuous use of such government orders would be illegitimate as it would amount to a declaration of a state of emergency that can only be made through a procedure of parliamentary competence and under judicial control, as provided for by articles 58 and 95, paragraph 5, letter b) and (6)) of the Constitution.
The Supreme Court, as the highest judicial body, held that it could not exercise its powers on matters falling within the jurisdiction of the Court of Appeal that the appellant presented only in the latter forum in charge of the legitimacy check (decision No.  KESC 22 (KLR)).