The reach of the bill of rights into personal legal relations in Kenyan constitutional law and jurisprudence

Abstract

ABSTRACT Kenya’s 2010 Constitution departs from its predecessor by extending the reach of its Bill of Rights to the private sphere of legal relations. It applies horizontally to private law and conduct, thereby binding private actors both directly and indirectly. This bears significant implications for fundamental rights enforcement in Kenya, which has long been influenced by the common law and where the previous bill of rights did not expressly bind private actors. Focusing on both pre- and post-2010 case law, this article analyses the horizontal effect of constitutional rights in Kenya and highlights the constraints of the common law-based vertical application on the effective enforcement of constitutional rights against private actors. It also provides some critical insights into the consequences of constitutionalising the horizontality of fundamental rights. In addition, on the basis of comparative experiences, it offers proposals for determining the extent to which constitutional rights should impact private legal relations.