Consumer Federation of Kenya (COFEK) v Attorney General & 4 Others
Petition No 88 of 2011
High Court at Nairobi
October 5, 2012
M Ngugi, J.
Reported by Andrew Halonyere

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Constitutional Law - fundamental rights and freedoms - socio-economic rights - declaration that socio-economic rights were violated by Government's failure to control rising cost of living - test for determining whether or not the state has met its obligation - manner in which matters concerning public interest should be brought before court-costs not to be imposed on proceedings that advance a legitimate public interest -whether the petition had merit -Constitution of Kenya, 2010 - Article 20(5), 22,23,43

This was a petition seeking inter alia a declaration that the Government’s failure to stabilize and reduce high fuel prices violates article 43 of the Constitution of Kenya which guarantees the petitioners and other citizens’ economic and social rights.Read More...

Held:

The key to justifiability of the socio-economic rights is the standard of reasonableness. Though a considerable margin of discretion must be given to the state in deciding how it is to go about fulfilling the socio-economic rights, the reasonableness of the measures that the state adopts can be evaluated by a court.
Many factors including a failure in rainfall have a negative impact on the availability of food and the cost of living and such factors are not a result of the failure on the part of the state to take appropriate policy and other measures to ensure the realisation by citizens of the socio-economic rights guaranteed under Article 43. The respondents have taken reasonable measures to meet their obligations under the Constitution.
When bringing matters of socio economic rights before the court, which have a critical bearing on the rights, lives and livelihoods of citizens, it is not enough to make bare statements with regard to the violation of rights without seriously addressing oneself to the manner in which the violations have occurred and the reasonableness or otherwise of the measures taken to avert or ameliorate their impact. At this nascent stage in the implementation of the Constitution of Kenya 2010, parties in the position of the petitioner, should they determine to take on cases which have a bearing on the public interest, must take them on with all due seriousness.
1. The manner in which the petition was conducted by the petitioner would ordinarily have attracted an award of costs against it. However, the intent of Articles 22 and 23 of the Constitution is that persons should have free and unhindered access to the Constitutional Court for the enforcement of their fundamental rights and freedoms. Similarly, Article 258 allows any person to institute proceedings claiming the Constitution has been violated or is threatened. The imposition of costs would constitute a deterrent and would have a chilling effect on the enforcement of the Bill of Rights.
In matters concerning public interest litigation, a litigant who has brought proceedings to advance a legitimate public interest and contributed to a proper understanding of the law in question without private gain should not be deterred from adopting a course that is beneficial to the public for fear of costs being imposed.