Court rejects bid to revoke protected status of State Houses, Lodges

The legal status of State Houses and lodges across Kenya remains unchanged after the High Court threw out a petition seeking to overturn the orders that classify the presidential residences as protected areas.

The court ruled that Operation Linda Jamii, which filed the case, had not provided adequate evidence to show that the legal notices were unconstitutional or inconsistent with the laws governing their issuance.

In a judgment delivered on Friday, Justice Roselyne Aburili read the decision on behalf of Justice Chacha Mwita, who has since been elevated to the Court of Appeal.

The petition challenged two legal notices: No. 433 of 1989, which designates various State Houses and lodges as protected areas, and No. 199 of 2020, which specifically concerns Kisii State Lodge.

Operation Linda Jamii questioned the legal foundation for placing the presidential residences under protected status. The properties serve as official residences for the President during visits to different parts of the country.

However, the court found that the group had not contested the constitutionality of the Public Order Act, the parent legislation under which the disputed notices were issued. It also failed to explain how the notices breached constitutional provisions or violated the law.

The judge stressed that a party seeking to invalidate legislation must identify and demonstrate the specific constitutional conflict rather than rely on broad claims that a law is unlawful.

“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 further found that the petitioner had not established that the orders conflicted with the Public Order Act, which provided the legal basis for their issuance.

On the 2020 notice concerning Kisii State Lodge, the judge said the group had not adequately set out how the designation allegedly failed to meet the requirements of the Statutory Instruments Act.

The court noted that the lack of clear particulars made it difficult to examine the alleged violations. It reiterated that anyone challenging the validity of a law must provide specific grounds showing how it conflicts with the Constitution or other applicable legislation.

In considering the constitutional issues raised, Justice Mwita also cited a decision by the Supreme Court of Canada, which addressed the importance of examining the purpose of legislation when determining constitutional questions.

The court ultimately found that Operation Linda Jamii had failed to establish grounds for invalidating either the 1989 order covering protected areas or the 2020 notice relating to Kisii State Lodge.

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

The dismissal means both contested legal notices remain in force, preserving the designation of the affected State Houses and lodges as protected areas.