GENERAL PROVISIONS

CHAPTER SEVENTEEN

GENERAL PROVISIONS

 

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ARTICLE 258. Enforcement of this Constitution

(1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.

(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act in their own name;

(b) a person acting as a member of, or in the interest of, a group or class of persons;

(c) a person acting in the public interest; or

(d) an association acting in the interest of one or more of its members.

 

ARTICLE 259. Construing this Constitution.

 (1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;

(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

(c) permits the development of the law; and

(d) contributes to good governance.

(2) If there is a conflict between different language versions of

this Constitution, the English language version prevails.

(3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and, therefore, among other things—

(a) a function or power conferred by this Constitution on an office may be performed or exercised as occasion requires, by the person holding the office;

(b) any reference in this Constitution to a State or other public office or officer, or a person holding such an office, includes a reference to the person acting in or otherwise performing the functions of the office at any particular time;

(c) a reference in this Constitution to an office, State organ or locality named in this Constitution shall be read with any formal alteration necessary to make it applicable in the circumstances; and

(d) a reference in this Constitution to an office, body or organisation is, if the office, body or organisation has ceased to exist, a reference to its successor or to the equivalent office, body or organisation.

(4) In this Constitution, unless the context otherwise requires— (a) if a word or expression is defined in this Constitution, any

grammatical variation or cognate expression of the word

or expression has a corresponding meaning, read with the changes required by the context; and

(b) the word “includes” means “includes, but is not limited to”.

(5) In calculating time between two events for any purpose under this Constitution, if the time is expressed—

(a) as days, the day on which the first event occurs shall be excluded, and the day by which the last event may occur shall be included;

(b) as months, the time period ends at the beginning of the day in the relevant month—

(i) that has the same number as the date on which the period began, if that month has a corresponding date; or

(ii) that is the last day of that month, in any other case; or

(c) as years, the period of time ends at the beginning of the date of the relevant year that corresponds to the date on which the period began.

(6) If a period of time prescribed by this Constitution for any purpose is six days or less, Sundays and public holidays shall not count when calculating the time.

(7) If, in any particular circumstances, the period of time prescribed by this Constitution ends on a Sunday or a public holiday, the period extends to the first subsequent day that is not a Sunday or public holiday.

(8) If a particular time is not prescribed by this Constitution for performing a required act, the act shall be done without unreasonable delay, and as often as occasion arises.

(9) If any person or State organ has authority under this Constitution to extend a period of time prescribed by this Constitution, the authority may be exercised either before or after the end of the period, unless a contrary intention is expressly mentioned in the provision conferring the authority.

(10) Except to the extent that this Constitution provides otherwise, if a person has vacated an office established under this Constitution, the person may, if qualified, again be appointed, elected or otherwise selected to hold the office in accordance with this Constitution.

(11) If a function or power conferred on a person under this Constitution is exercisable by the person only on the advice or recommendation, with the approval or consent of, or on consultation

with, another person, the function may be performed or the power exercised only on that advice, recommendation, with that approval or consent, or after that consultation, except to the extent that this Constitution provides otherwise.

 

ARTICLE 260. Interpretation

In this Constitution, unless the context requires otherwise—

.years;

“adult” means an individual who has attained the age of eighteen

“affirmative action” includes any measure designed to overcome or ameliorate an inequity or the systemic denial or infringement of a right or fundamental freedom;

“child” means an individual who has not attained the age of eighteen years;

“contravene” includes fail to comply with;

“county legislation” means a law made by a county government or under under authority conferred by a county Assembly;

“disability” includes any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long- term effect on an individual’s ability to carry out ordinary day-to-day activities;

“document” includes––

(a) any publication, or any matter written, expressed, or inscribed on any substance by means of letters, figures or marks, or by more than one of those means, that is intended to be used or may be used for the purpose of recording that matter; and

(b) electronic files;

force;

“effective date” means the date that this Constitution came into

“fail” includes refuse;

“financial year” means the period of twelve months ending on the thirtieth day of June or other day prescribed by national legislation, but the initial financial year of any entity is the period of time from its

coming into existence until the immediately following thirtieth day of

June, or other day prescribed by national legislation;

Gazette” means the Kenya Gazette published by authority of the national government, or a supplement to the Kenya Gazette;

“guarantee” means any absolute or conditional promise, commitment or undertaking by the national government to partially or completely re-pay any loan to a county government or any person;

“judicial officer” means a registrar, deputy registrar, magistrate, Kadhi or the presiding officer of a court established under Article 169 (1) (d);

“land” includes—

(a) the surface of the earth and the subsurface rock; (b) any body of water on or under the surface;

(c) marine waters in the territorial sea and exclusive economic zone;

(d) natural resources completely contained on or under the surface; and

(e) the air space above the surface; “legislation” includes––

(a) an Act of Parliament, or a law made under authority conferred by an Act of Parliament; or

(b) a law made by an assembly of a county government, or under authority conferred by such a law;

“loan” includes any form of borrowing, lending or deferred payment in respect of which money from a public fund may be used, or is required to be used, for payment or repayment;

“marginalised community” means—

(a) a community that, because of its relatively small population or for any other reason, has been unable to fully participate in the integrated social and economic life of Kenya as a whole;

(b) a traditional community that, out of a need or desire to preserve its unique culture and identity from assimilation, has remained outside the integrated social and economic life of Kenya as a whole;

(c) an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy; or

(d) pastoral persons and communities, whether they are— (i) nomadic; or

(ii) a settled community that, because of its relative geograph- ic isolation, has experienced only marginal participation in the integrated social and economic life of Kenya as a whole;

“marginalised group” means a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27 (4);

“national legislation” means an Act of Parliament, or a law made under authority conferred by an Act of Parliament;

“natural resources” means the physical non-human factors and components, whether renewable or non-renewable, including—

(a) sunlight;

(b) surface and groundwater;

(c) forests, biodiversity and genetic resources; and

(d) rocks, minerals, fossil fuels and other sources of energy;

“older member of society” means a person who has attained the age of sixty years;

“person” includes a company, association or other body of persons whether incorporated or unincorporated;

“political party” means an association contemplated in Part 3 of

Chapter Seven;

“property” includes any vested or contingent right to, or interest

in or arising from—

(a) land, or permanent fixtures on, or improvements to, land;

 

(b) goods or personal property; (c) intellectual property; or

(d) money, choses in action or negotiable instruments;

“public officer” means—

(a) any State officer; or

(b) any person, other that a State Officer, who holds a public office;

“public office” means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament;

“public service” means the collectivity of all individuals, other

than State officers, performing a function within a State organ;

“Republic” means the Republic of Kenya;

“State”, when used as a noun, means the collectivity of offices, organs and other entities comprising the government of the Republic under this Constitution;

 

“State office” means any of the following offices—

 

(a) President;

 

(b) Deputy President; (c) Cabinet Secretary;

(d) Member of Parliament; (e) Judges and Magistrates;

(f) member of a commission to which Chapter Fifteen applies;

 

(g) holder of an independent office to which Chapter Fifteen

applies;

(h) member of a county assembly, governor or deputy governor of a county, or other member of the executive committee of a county government;

(i) Attorney-General;

 

(j) Director of Public Prosecutions; (k) Secretary to the Cabinet;

(l) Principal Secretary;

 

(m) Chief of the Kenya Defence Forces;

 

(n) commander of a service of the Kenya Defence Forces; (o) Director-General of the National Intelligence Service;

(p) Inspector-General, and the Deputy Inspectors-General, of the National Police Service; or

 

(q) an office established and designated as a State office by

national legislation;

 

“State officer” means a person holding a State office;

 

“State organ” means a commission, office, agency or other body

established under this Constitution;

 

“writing” includes printing, photography, lithography, typewriting, Braille, and any other means of representing or reproducing words in a visible form; and

 

“youth” means the collectivity of all individuals in the Republic who—

 

(a) have attained the age of eighteen years; but

 

(b) have not attained the age of thirty-five years.

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