Geoffrey Andare v Attorney General & 2 others [2016] eKLR
Constitution.
56. Article 19 agrees with the petitioner that this Court has jurisdiction under Article 165 (3) (b) of the
Constitution to determine the matter. It submitted that the petitioner is challenging the
constitutionality of section 29 of the Kenya Information and Communication Act and not the
conduct, mandate or powers of the DPP.
57. I agree with the parties in this matter on the question of jurisdiction, and I do not believe that
there is much dispute on this point, that as the Court stated in the case of The Owners of Motor
Vessel “Lillian S” vs Caltex Oil Kenya Ltd (supra), jurisdiction is everything. Should the Court
find that it has no jurisdiction, then it would be bound to down its tools and take no further step.
58. As is evident from the petitioner’s pleadings, however, at the core of his case is the
constitutionality of section 29 of the Kenya Information and Communication Act. It is, again I
believe, undisputed, in light of the provisions of Article 165 of the Constitution, that the High Court
has the jurisdiction to determine whether a provision of law is in any way in conflict with the
Constitution. Article 165 (3)(b) and (d), which are relevnt for present purposes, provide that the
High Court shall havea. …;
b. Jurisdiction to determine the question whether a right or fundamental freedom in the Bill
of Rights has been denied, violated, infringed or threatened;
c. …;
d. Jurisdiction to hear any question respecting the interpretation of the Constitution
including the determination ofi. The question whether any law is inconsistent with or in contravention of the Constitution;
ii. The question whether anything said to be done under the authority of the Constitution or
of any law is inconsistent with, or in contravention of, the Constitution;
iii. …
59. It is thus evident that this Court is vested with the jurisdiction to interpret the Constitution and to
determine whether any legislation is in conflict with the Constitution. That is the issue that the
petitioner has placed before this Court. He has challenged, first, the constitutionality of section
29 of the Kenya Information and Communication Act which he alleges violates his right to
freedom of expression. As a result, he contends that his prosecution under the said provision of
the Act further violation his constitutional rights. In my view, these are matters that properly fall
within the jurisdiction of this Court in accordance with Article 165 (3) (b) and (d) (i) of the
Constitution.
60. The second jurisdictional question raised by the DPP relates to the orders that the petitioner
seeks, which, in the DPP’s view, would mean that the High Court is entering into an area
reserved for the trial court. I believe that the circumstances under which the High Court would
intervene in a trial before a subordinate court have been considered and are fairly well settled. It
must be in circumstances where the continuation of the proceedings would amount to a violation
of the rights of the petitioner. As was stated by the Court in the case of George Joshua Okungu
and Another vs Chief Magistrate Court Anti-Corruption Court Nairobi and Another Petition
No. 227 and 230 of 2009:
[50.] “The law is that the Court ought not to usurp the Constitutional mandate of the Director of
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