Disclaimer: This legal report is not to be considered legal advice. As far as possible, this report was accurate at the time the report was produced, although that is likely to have changed since.

INCLUSIVE PUBLIC SPACE PROJECT

LEGAL REPORT ON KENYA

Lawrence Murugu Mute
Email: lamumu07@gmail.com

Agnes Meroka-Mutua
Email: agi.meroka@gmail.com

Last updated: January 2021

A Context

According to the 2019 Kenya Population and Housing Census, the country’s population is 47,564,296 people, with females accounting for 50.5 percent of the population.1 the population of persons with disabilities in the country remains highly contested. The 2019 census determined that the prevalence of disability is at 2.2 percent, which if correct is a sharp drop from the 2009 Kenya Housing and Population Census which found that 3.5 percent of the population had a disability, and the Kenya National Survey of Persons with Disabilities of 2008 which found that 4.6 percent of Kenyans had a disability. This also compares unfavourably with the global prevalence of disability which is estimated at around 15 percent.

The country’s constitutional and legal system is anchored on the normative and institutional arrangements established in the quite progressive Constitution of Kenya (2010),2 which replaced the Kenya Independence Constitution (1963),3 which itself was revised variously until its repeal in 2010.

Article 2 of the Constitution voids laws, including customary laws, that are inconsistent with it and it invalidates acts or omissions that contravene the Constitution. It also provides that the general rules of international law form part of the law of Kenya, as do treaties or conventions ratified by Kenya. Courts have understood this provision as meaning that:
rules of international law are not part of the laws of Kenya unless they are part of the general rules of international law. The general rules of international law are those rules that are peremptory principles and are norms of international law; … they are those rules from which no derogation is permitted; they are globally accepted standards of behaviour; they are rules and principles that are applicable to a large number of states on the basis of either customary international law or multilateral treaties; the general rules of international law are not based on the consent of the State but are obligatory upon state and non-state actors on the basis of customary international law and peremptory norms (jus cogens).4

Article 21 of the Constitution obligates the State to ‘… enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.’ The Treaty Making and Ratification Act gives effect to this requirement by establishing the procedure for the making and ratification of treaties.5

In a significant departure from the Repealed Constitution which had entrenched a unitary government, the Constitution establishes governments at the national as well as county levels, in the words of Article 6 of the Constitution, as ‘… distinct and interdependent’. The National Government includes the National Executive, Parliament and the Judiciary. The National Executive comprises the President, Deputy President and Cabinet.

Parliament has a bi-cameral legislature comprising the National Assembly and the Senate. The roles of the National Assembly include: representing constituents and special interests; deliberating and resolving issues of concern to the people; enacting legislation; determining national revenue allocation, appropriating funds for expenditure by the national government, and exercising oversight over national revenue and its expenditure; and exercising oversight of State organs. The roles of the Senate include representing counties; considering, debating and approving bills concerning counties; and determining the allocation of national revenue among counties.

Significantly, specific constitutional and statutory provisions have been enacted for purposes of the representation of persons with disabilities. The National Assembly’s members include 12 members nominated by parliamentary political parties to represent what are referred to as ‘special interests’, including the youth, persons with disabilities and workers. The Senate includes one man and one woman to represent persons with disabilities. Each County Assembly includes members of marginalised groups, including persons with disabilities. It should be noted that the number of legislators with disabilities in the national as well as county legislatures is now significant compared to previous periods when persons with disabilities were hardly present in the then national Parliament or local authorities. It is however the case that legal loopholes continue to be exploited with the effect that following the 2017 general elections 17 county assemblies do not have even one legislator with disability.

Judicial exercise of jurisdiction is regulated by the Constitution and the Judicature Act.6 Pursuant to Section 3 of the Judicature Act, the exercise of judicial jurisdiction has to conform with the Constitution and, subject to it, all written laws and, subject to them, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on 12 August 1897 when English law became applicable in Kenya, and the procedure and practice observed in courts of justice in England at that date. Courts are guided by African customary law in civil cases in which one or more of the parties is subject to or affected by. Customary law should also not be repugnant to justice and morality or inconsistent with any written law.

The Judiciary has an elaborate system of courts, including the Supreme Court, Court of Appeal, High Court and Magistrates Courts. Statutes have also established the Employment and Labour Relations Court and the Environment and Land Court, both of which are equivalent to the High Court.

Under the Constitution, every person has standing to institute court proceedings alleging the denial, violation, infringement or threat to a right or fundamental freedom in the Bill of Rights, or similarly making a claim in respect of contravention of the Constitution. In either instance, a person may act in their own interest, on behalf of another person who cannot act in their name, on behalf of or in the interest of a group or class of persons, in the public interest, or an association acting in the interests of one or more of its members.

Chapter 15 of the Constitution establishes a number of Constitutional Commissions and Independent Offices to handle matters of particular importance or notoriety, including human rights, land, prosecutions, public service, corruption, revenue allocation, financial management and security. Of significance too is the Bill of Rights entrenched in the Constitution which enunciates for individuals a broad rubric of civil, political, economic, social and cultural rights, establishes concomitant obligations upon the State and private persons including corporations, and establishes an inclusive framework for equality and non-discrimination.
The devolved level of governance comprises 47 counties, each with a County Executive Committee headed by a Governor and a County Assembly. The aims of devolved government include fostering national unity by recognising diversity, and enhancing people’s participation in making decisions affecting them. Devolution also seeks to protect and promote the interests and rights of minorities and marginalised communities.

Under the Fourth Schedule of the Constitution, the functions of the National Government include: foreign affairs; immigration and citizenship; national defence; police services; courts; national economic policy and planning; and monetary policy. The National Government is also responsible for transport and communication, including road traffic, the construction and operation of trunk roads, and standards for the construction and maintenance of other roads by counties.

The functions of County Governments include agriculture; county health services; control of air pollution, noise pollution, other public nuisances and outdoor advertising; cultural activities, public entertainment and public amenities; animal control and welfare; trade development and regulation; county planning and development; and county public works and services. Counties are also responsible for county transport, including county roads, street lighting, traffic and parking, public road transport, and ferries and harbours.

Some functions and powers of governance are exercised exclusively by the National Government while other functions are in the exclusive remit of County Governments. It is however the case that certain functions and powers may be in the concurrent jurisdiction of the National and County Governments. The Constitution even anticipates that a function or power of government at one level may be transferred by mutual agreement to the other level of government where such power or function would be performed more effectively by the transferee government.

A2 International Commitments

A2.1 UN Convention on the Rights of Persons with Disabilities

Kenya is a party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD)7 which it signed in May 2007 and ratified in June 2008. The country is not a party to the Optional Protocol to the Convention on the Rights of Persons with Disabilities, a situation which conforms with its reticence to become party to instruments that give standing to individual claims lodged before international human rights committees. Indeed, it should be noted that Kenya rejected recommendations made in 2020 when it undertook its third Universal Periodic Review before the Human Rights Council that it should become party to the UN Optional Protocol to the CRPD.8

Article 9 of the CRPD obligates Kenya to take appropriate measures to ensure to persons with disabilities access on an equal basis with others to the physical environment and to transportation. Barrier-free access to streets is predicated on the inherent dignity and diversity of persons with disabilities.9 The country has not lodged any reservations on the CRPD and it is obligated to fully implement barrier-free pedestrian access to streets.

In its Initial Periodic Report to the Committee on the Rights of Persons with Disabilities, Kenya had reported that roads within cities generally do not have pedestrian-friendly walkways, that vehicles even drive on the pedestrian walkways to avoid traffic jams, and that traffic lights are often broken, thereby putting pedestrians at grave risk.10 In its concluding observations and recommendations to Kenya, the Committee was concerned about the barriers that prevent persons with disabilities from accessing public transportation in urban and rural areas and the lack of measures to enforce the guarantees concerning accessibility in all areas of life. It was also concerned about the lack of measures to sanction non-compliance with existing accessibility standards.11 The Committee recommended that Kenya should finalise and adopt the draft consolidated national action plan on accessibility and disability rights for the implementation of the Persons with Disabilities Act and related provisions of the 2010 Constitution; and effectively implement the regulations of non-compliance as provided in the Persons with Disabilities Act and ensure adjustment orders are issued to non-compliant stakeholders.12 Kenya subsequently established a technical committee which developed and is overseeing the Implementation Plan of Action of the Recommendations.13 the Committee draws its membership from the ministry responsible for matters of disability as well as the National Council for Persons with Disabilities established by statute to oversee matters of disability. The committee also includes representation from persons with disabilities. The committee has not published its progress since its establishment.

A2.2 UN Sustainable Development Goals

Kenya, which subscribes to the Sustainable Development Goals (SDGs), established an Inter-Agency Technical Committee to coordinate SDGs activities, under the SDGs Coordination Directorate in the State Department for Planning. All government ministries, departments and agencies were directed to mainstream the SDGs into policy, planning, budgeting, and monitoring and evaluation systems and processes.14 The Government has endeavoured to align Kenya’s SDGs commitments with its long-term economic blueprint, the Kenya Vision 2030 which aims to create a globally competitive and prosperous country with a high quality of life by the year 2030. The Third Medium Term Plan (MTP3) (2017-2022) derived from the 2030 Vision draws from the SDGs. The MTP indeed makes the following commitment on infrastructure:
Infrastructure plays a critical role in facilitating and accelerating socio-economic development in the country. The Government has continued in its efforts to develop efficient and effective infrastructure, which is a key enabler for other sectors as envisaged in Kenya Vision 2030. During MTP III, investment in infrastructure programmes and projects will focus on accessibility, quality, functionality, job creation, disaster preparedness and protection of the environment. Investing in infrastructural development will support achievement of the “Big Four” initiatives by building on the on-going infrastructural development in road, rail, marine, air, energy, and ICT. 15

Kenya’s 2017 and 2020 National Voluntary Reviews were prepared by the National Government in partnership with the umbrella bodies of stakeholders such as the private sector (Kenya Private Sector Alliance), civil society organisations (SDGs Kenya Forum), the counties (Council of Governors), the youth, academia, Parliament, UN agencies, Human Rights institutions, and the County Assemblies Forum. It also included ‘special groups including youth and persons with disabilities’. 16 A consortium of organisations of and for persons with disabilities – including United Disabled Persons of Kenya, Kenya Association of the Intellectually Handicapped, Ecumenical Disability Advocates Network, Users and Survivors of Psychiatry in Kenya, Leonard Cheshire Disability and Sense International – generated a report which fed into the national review. 17

The SDGS, among other things, commit Kenya to adopt policies ‘… which increase … sustainable transport systems; …’18 The target for realising this commitment is the provision by 2030 of ‘… access to safe, affordable, accessible and sustainable transport systems for all, improving road safety, notably by expanding public transport, with special attention to the needs of those in vulnerable situations, women, children, persons with disabilities and older persons.’19 Kenya’s preparatory report to its second voluntary national review does not include a disability-disaggregated assessment of progress in implementing Goal 11.2 of the 2030 Agenda, simply reporting ongoing work to improve transport mobility and accessibility in Nairobi Metropolitan areas by constructing bus terminuses and pathways for bicyclists and pedestrians.20 The report includes assessments on other themes relevant to disability. For example, on other goals, the reported assessments covering Goal 1 on ending poverty in all its forms include the allocation of 1.3 billion shillings to the cash-transfer programme for persons with severe disabilities, overseen by the State Department for Social Protection, during the 2018/2019 financial year. 21

A3 Multinational Law and Policy

A3.1 African Union

A3.1.1 Strategies and Action Plans

The African Union (AU) has developed strategies and action plans with implications for pedestrian-access to streets. Aspiration 2 of the AU Agenda 2063, the continent’s long-term strategic framework, anticipates that by that year: ‘… the necessary infrastructure will be in place to support Africa’s accelerated integration and growth, technological transformation, trade and development. This will include high-speed railway networks, roads, shipping lines, sea and air transport, as well as well-developed ICT and the digital economy.’22 Agenda 2063, however, does not discourse specifically on strategic considerations for persons with disabilities or older persons.23

The African Road Safety Action Plan (2011-2020) covers five pillars, including road safety management, and safer roads and mobility.24 Pillar 1, on road safety and management foresees the establishment or enhancement of institutional frameworks for implementing road safety activities. Pillar 2, on safer roads and mobility, deals with road development, and the safety of all road users, especially pedestrian and other vulnerable users. It requires AU Member States to prioritise road safety, including by introducing or improving appropriate facilities for pedestrians and vulnerable road users. The Plan requires Member States to:
… carry out safety audits for the most travelled portions of the network throughout planning, designing, construction and operation stages – and conduct corrective upgrade programs – so that mitigation measures become part of day to day network management. Road safety audits need to specify the safety of the infrastructure for each type of road user, including and especially vulnerable users. Road safety audits also ensure capacity development and mainstreaming.25

Specifically, on disability matters, the AU, and its predecessor, the Organisation of African Unity (OAU), have employed two decade-long strategies. The African Decade of Persons with Disabilities (1999-2009) was adopted by the Assembly of Heads of State and Government of the OAU in July 1999, and it was extended to 2019 by the first conference of AU Ministers of Social Development.26 The goal of the African Decade was ‘… the full participation, equality and empowerment of people with disabilities in Africa.’27 The Continental Plan of Action of the African Decade of Persons with Disabilities (2010 – 2019) set out eight strategic thematic areas for national implementation. These were:

  1. The establishment of a coordination and mainstreaming focal point in national governments;
  2. Statistics, research and evidence gathering on disabilities;
  3. Legislation covering non-discrimination, equality before the law and freedom from exploitation and cruel treatment of persons with disabilities;
  4. Health and rehabilitation;
  5. Adequate standard of living and social protection;
  6. Promotion of inclusion of persons with disabilities in all sectors of society;
  7. The development of institutions dealing with disability, including disability desks in all government ministries; and
  8. Monitoring, evaluation and reporting on the implementation of the Continental Plan of Action.28

The Plan requires Member States of the AU, in relation to comprehensive rehabilitation and habilitation services, to develop and implement accessibility regulations and universal design suitable to local conditions.29 In relation to prevention of disability, the Plan requires Member States to introduce and implement stringent road safety policies or strengthen existing policies. 30

The African Union Disability Strategic Policy Framework (DPF),31 the successor policy framework to the African Decade, is: ‘mindful that there are increasing opportunities for promoting and protecting the rights of persons with disabilities, including through the use of new life-changing technologies for enhancing the accessibility of the physical environment, public transportation, knowledge, information and communication’.32 Strategic area 8 of the DPF aims to enhance access to the built and virtual environment, and includes the following recommended actions:

  1. Enactment or amendment of legislation on the built environment, transportation (road, rail, air and sea), information, communication and technology to promote Universal Design;
  2. Development and enforcement of accessibility standards;
  3. Development of reliable, affordable and integrated transportation facilities and services in urban and rural areas;
  4. Promotion and facilitation of action-oriented research on the built environment, transportation and information and communications technologies; and
  5. Ensuring active and meaningful participation of organisations of persons with disabilities and their families in all accessibility efforts and processes, including in the design and development of policies and regulations, products and services to assess the need of users and to help monitor progress and responsiveness.

The goals and targets of the DPF are to be attained by 2030, and its implementation is vested in the Commissioner of the African Union Department of Social Affairs.

In the meantime, in 2013, the AU had introduced the African Union Disability Architecture (AUDA) as the new policy framework for ensuring the rights of persons with disabilities and implementing their inclusion on the continent. AUDA comprised legal, programme and institutional components for accelerating the full participation, equality and empowerment of people with disabilities in Africa. 33

The plans and strategies described above are constrained by a number of factors. Policy instruments are not supported by the binding obligations that are written into legal instruments, and states indeed do not necessarily provide regular or indeed any reports even where they are expected to do so. An evaluation prepared for the AU on the effectiveness of the 1999-2009 Plan of Action of the African Decade observed that many countries did not prioritise disability as a human rights and development issue, and that this accounted for low political commitment on implementation of the Plan of Action.34 The evaluation indeed did not make any findings on barrier-free access for persons with disabilities. More recently, a monitoring report from the Department of Social Affairs of the African Union Commission on implementation of the Plan of Action from 2010-2019 received responses from 33 of Africa’s 55 states, being 60 percent responses compared to 20.8 percent responses in the initial monitoring report nearly a decade before. States had therefore become far more committed to disability causes. The report, among others, found that there was a dearth of reliable disability statistics across the continent, and it was incumbent that States strengthen their disability data collection and research capacities.35

A3.1.2 Treaties and Law

The African Charter on Human and Peoples’ Rights (ACHPR),36 to which Kenya is a State Party, prohibits discrimination on the basis of listed grounds as well as other unenumerated grounds,37 which have been interpreted to include disability. The ACHPR further provides that: ‘The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.’38 Later sections of this report explain the remedies available to a person who deems that their Charter rights have been violated.

In its 2015 concluding observations and recommendations to Kenya, the African Commission on Human and Peoples’ Rights, which oversees the ACHPR’s implementation, commended the country, among others, for the National Action Plan on Accessibility and Disability Rights, and the passage of subsidiary legislation to give effect to the Persons with Disabilities Act, including: the Persons with Disabilities (Access to Employment, Services and Facilities) Regulations, 2009; The Persons with Disabilities (Cost Care, Support and Maintenance) Regulations, 2009; The Persons with Disabilities (Registration) Regulations, 2009; the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010; and the Persons with Disabilities (National Development Fund for Persons with Disabilities) (Conduct of Business and Affairs of the Board of Trustees) Regulations, 2009. The Commission also commended Kenya for establishing a cash transfer programme for persons with severe disabilities and older vulnerable persons (aged over 65 years). The Commission however expressed its concerns on the absence of specific legislation to protect the rights of older persons, whose expedited enactment it called for. 39

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (Disability Rights Protocol), which was adopted by the AU Heads of State and Government in January 2018, affirms every person with disability’s right to barrier-free access to the physical environment and to transportation, and requires states parties to take reasonable and progressive steps to realise this right, including by modifying all inaccessible infrastructure and the universal design of all new infrastructure.40 The Protocol will come into force once it is ratified by 15 States. By November 2020, only nine States had signed it and no State had ratified it. Becoming party to the Protocol was one of the commitments Kenya made at the Global Disability Summit in 2018,41 but this has still not happened.

Another relevant human rights instrument which has not come into force is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa.42 This is the first international or regional human rights instrument covering older members of society. It specifically obligates States Parties to take measures to ensure that older persons have access to infrastructure, including buildings and public transport, and that they are accorded sitting priority.43 Both Protocols also highlight the intersectional character of disability and age,44 particularly establishing the imperative that older persons with disabilities should have access to need-responsive services within the community. Community-based services anticipate the need for barrier-free access. The intersectionality angle is also covered in respect of women in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, to which Kenya is a party.45 More specific to transportation, Articles 14 and 15 of the Constitutive Act of the African Union46 mandates the African Union Commission to coordinate the transport, communication and tourism sector.

Article 14 of the African Road Safety Charter47 requires states parties to ensure the needs of vulnerable road users are adequately taken into account in the planning, design and provision of road infrastructure. Article 1 identifies vulnerable road users as users deemed most at-risk in traffic ‘… such as pedestrians, cyclists, motorcyclists and public transport passengers. Children, older people and disabled people may also be included in this category.’ Kenya is however not party to this Charter.

A3.1.3 Standards and Guidance

In 2019, the Pan-African Parliament adopted the Model Law on Disability as a standard which African States should use when enacting legislation for protecting and promoting the rights of persons with disabilities. the Model Law’s provisions on barrier-free access in most respects mirror the provisions in the Disability Rights Protocol.

A3.1.4 funding

The AU does not have dedicated resource streams for funding States or other entities to implement the laws, plans or strategies discussed here. Each State or entity generates or seeks resources to implement their policy or legal commitments. We do not have information on whether Kenya has sought specific funding to implement its continental barrier-free commitments. However, precedent exists where the country has sought funding from continental financial institutions to undertake programming including disability-focused components. The African Development Bank for example is supporting a six-year project supporting 33 technical training institutes including four institutes mainly enrolling youth with disabilities. The project’s aims include increasing access and equity and improving quality and relevance of technical and vocational education and training, and its beneficiaries include at least 300 persons with disabilities.48

A3.2 East African Community

A3.2.1 Strategies and Action Plans

The East African Community (EAC’s) commitment on accessibility for persons with disabilities is to promote the development of disability user-friendly facilities and infrastructure including transport.49

A3.2.2 Treaties and Law

Under article 6 of the Treaty for the Establishment of the East African Community,50 the fundamental principles of the EAC include: ‘good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.’ The importance of this principle may not be understated since it has been the basis for the East African Court to determine that it has human rights jurisdiction, despite the Treaty not otherwise being explicit on the matter.51

Article 90 of the Treaty commits Partner States to ‘adopt and establish common road safety regulations, accident rescue, first aid, medical care and post-trauma systems within the Community. Finally, Article 120 of the Treaty requires Partner States to cooperate in ‘the development and adoption of a common approach towards the disadvantaged and marginalised groups, including children, the youth, the elderly and persons with disabilities through rehabilitation and provision of, among others, foster homes, health care education and training.’ This provision has been the basis for the generation of legislative initiatives towards the establishment of uniform measures for protecting the rights of persons with disabilities. 52

A3.2.3 Standards and Guidance

No standards and guidance have been developed in this regard.

A3.2.4 Funding

The EAC does not have dedicated resource streams for funding States or other entities to implement the laws, plans or strategies discussed here. Each State or entity generates or seeks resources to implement their policy or legal commitments. The Community is indeed facing budgetary problems in remitting funds to finance core costs such as the East African Community Parliament.53 Notably, too, the EAC and its partner States has established a collaboration platform with development partners to mobilise funds for the development of the East African road network totalling 15,000 kilometres.54 It is not clear if any raised funding has specific regard for barrier-free access.

A4 National/Federal Strategy, Law and Policy

A4.1 Equality and Inclusion

A4.1.1 Equality

Article 27 of the Constitution guarantees every person equality before the law and the right to equal protection and equal benefit of the law. It also prohibits direct or indirect discrimination of any person by the State or an individual on grounds including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. These guarantees and prohibitions are in conformity with the national values and principles of governance, established in Article 10, which bind all State organs, State officers, public officers and all other persons whenever they apply or interpret the Constitution, when they enact, apply or interpret any law, or when they make or implement public policy decisions. Those national values and principles include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised’. Article 21 provides that State organs and all public officers ‘… have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.’

Kenya does not have comprehensive anti-discrimination legislation to enable the Constitution’s provisions on equality and non-discrimination. One of the recommendations which received the Government’s support during its second Universal Periodic Review cycle in 2015 was that it should adopt a comprehensive anti-discrimination law affording protection to all individuals.55 This has still not happened; and neither has a comprehensive national equality policy been adopted despite the preparation of a draft Equality policy. As we shall show in A4.1.3, the country has an albeit dated disability statute which legislates on certain relevant aspects.

Mixed success has been had in the establishment of an equality institutional framework. The National Gender and Equality Commission Act56 and the Kenya National Commission on Human Rights Act57 were enacted in 2011 to enable Article 59 of the Constitution which sets out the institutional framework for ensuring human rights and equality. The functions of the National Gender and Equality Commission (NGEC), as set out in Section 8 of the Act, include to:

  1. Promote gender equality and freedom from discrimination in accordance with Article 27 of the Constitution;
  2. Monitor, facilitate and advise on the integration of the principles of equality and freedom from discrimination in all national and county policies, laws, and administrative regulations in all public and private institutions;
  3. Act as the principal organ of the State in ensuring compliance with all treaties and conventions ratified by Kenya relating to issues of equality and freedom from discrimination and relating to special interest groups including minorities and marginalised persons, women, persons with disabilities, and children;
  4. Co-ordinate and facilitate mainstreaming of issues of gender, persons with disability and other marginalised groups in national development and to advise the Government on all aspects thereof;
  5. Co-ordinate and advise on public education programmes for the creation of a culture of respect for the principles of equality and freedom from discrimination; and
  6. Receive and evaluate annual reports on progress made by public institutions and other sectors on compliance with constitutional and statutory requirements on the implementation of the principles of equality and freedom from discrimination.

The NGEC’s equality mandate has faced contention on the basis that the broad human rights mandate of the Kenya National Commission on Human Rights (KNCHR) necessarily has to include equality components for example in respect of persons with disabilities. Initially, upon Kenya becoming party to the Convention, the Attorney-General vested this monitoring function in the KNCHR, before later transferring it to the NGEC.58 This role has now been re-designated to the KNCHR. Indeed, prior to this latest decision, in its concluding observations to Kenya, the Committee on the Rights of Persons with Disabilities raised the concern: ‘… that the Kenya National Commission on Human Rights does not form part of the national mechanism for monitoring the Convention, and that the current mechanism does not comply with the Principles Relating to the Status of National Institutions for the Promotion and Protection of Human Rights (Paris Principles).’59 The Committee duly recommended: ‘… that the State party establish a national mechanism to monitor the implementation of the Convention, with the participation of the Kenya National Commission on Human Rights, as an institution in compliance with the Paris Principles, in line with article 33 (2) of the Convention …’60

A4.1.2 Accessibility

Article 54 of the Constitution provides that persons with disabilities are entitled ‘to reasonable access to all places, public transport and information.’ Section 21 of the Persons with Disabilities Act**61** entitles persons with disabilities: ‘… to a barrier-free and disability-friendly environment to enable them to have access to buildings, roads and other social amenities, and assistive devices and other equipment to promote their mobility.’ Sections 22-23 require proprietors of public buildings and operators of public service vehicles to make appropriate adaptations to suit persons with disabilities. The National Council for Persons with Disabilities, which is established under the Act, has the power to issue adjustment orders in respect of premises, services or amenities that are inaccessible to persons with disabilities on account of structural, physical, administrative or other impediments to such access.

The Act however makes no specific provisions on pedestrian access to streets, and adjustment orders do not empower the Council to stipulate adjustments on the design of roads or streets. In any case, the Council has to date not issued any adjustment orders covering premises and vehicles, having never recruited building inspectors or entered into protocols with other State agencies to support inspections. There is indeed contention that the equivalent or adjustment orders should be bestowed on statutory bodies which ordinarily regulate the design and engineering of buildings or indeed roads. The counterargument however is that the National Council is best placed to understand the particular difficulties of users with disabilities. One further notable limitation is the Act’s requirement limiting the service of adjustment orders to health institutions (hospitals, clinics or nursing homes) and education institutions controlled or managed by the government without the consent of the Ministry of Health and the Ministry of Education respectively. Where the relevant Minister fails to communicate consent or dissent within 60 days, the Council may issue the adjustment order as if consent had been issued.

A4.1.3 Disability

The disability portfolio in the National Government is placed in the Social Development Division in the State Department of Social Protection. This Division acts as the focal-point on implementation of the CRPD as anticipated in Art 33 (1) of the Convention. The other implementation focal-point is the National Council for Persons with Disabilities, established under the Persons with Disabilities Act to ‘…coordinate all issues of persons with disabilities in national development’.62

While it is now fairly dated legislation, the Persons with Disabilities Act is the signature enabling law which deals with matters of disability. The Act provides for the rights and rehabilitation of persons with disabilities, and the equalisation of opportunities for persons with disabilities. As already explained in the previous section, the Act entitles persons with disabilities a barrier-free and disability-friendly environment so that they may have access to buildings, roads and other social amenities, and assistive devices and other equipment to promote their mobility. Furthermore, regulations made pursuant to that Act require relevant ministries, departments and local authorities to provide for the installation of auditory signals at red lights in public roads for the benefit of persons who are visually impaired. They also require kerb cuts and slopes to be made in pavements for the easy access of wheel chair users, the engraving of pedestrian crossings and the edges of railway platforms for persons who are visually impaired, the posting of appropriate symbols of disability, and the posting of warning signals and symbols as necessary.63

A4.1.4 Older People

Article 57 of the Constitution requires the State to take measures to ensure the rights of older persons:

  1. To fully participate in the affairs of society;
  2. To pursue their personal development;
  3. To live in dignity and respect and be free from abuse; and
  4. To receive reasonable care and assistance from their family and the State.

The National Policy on Older Persons and Ageing64 acknowledges that older persons have limited accessibility to ‘friendly transport and the built environment’. The Policy aims to review existing infrastructural policies and legislation to ensure they accommodate the rights and needs of older persons. The Policy commits the Government:

  1. To review the Transport Policy to address the needs of older persons; and
  2. To review and update infrastructural policies, legal frameworks and programs to ensure they address the needs of older persons in the rural and urban set up.

A4.2 Transport

One of the functions of the national government is to construct and operate national trunk roads and to formulate standards for the construction and maintenance of county roads. Pursuant to Sections 4, 7 and 10, the Kenya Roads Act65 establishes the Kenya National Highways Authority, the Kenya Urban Roads Authority and the Kenya Rural Roads Authority, with responsibilities for the management, development, rehabilitation and maintenance of national roads. The Kenya National Highways Authority deals with national roads. Section 4(2)(f) of the Act provides that the functions of the Highways Authority shall include: overseeing the management of traffic and road safety on national roads, in collaboration with the Ministry responsible for Transport and the Police Department. The Kenya Rural Roads Authority deals with rural roads, and section 7(2)(f) provides that the Authority shall oversee the management of traffic and road safety on national roads, in collaboration with the Ministry responsible for Transport and the Police Department. The Kenya Urban Roads Authority deals with public roads in cities and municipalities, except national roads falling under the mandate of the Kenya National Highways Authority.

The specific functions of these Authorities include:

  1. The construction, upgrading, rehabilitation and maintenance of roads;
  2. The control of roads and road reserves and access to roadside developments;
  3. Implementation of road policies;
  4. Ensuring the quality of road works in terms of prescribed standards;
  5. Collaborating with other agencies to oversee the management of traffic and road safety;
  6. Collecting and collating data on the use of roads as may be necessary for efficient forward planning; and
  7. Monitoring and evaluating the use of national roads.

Significantly, the government’s recognition of the importance of regular streams of resources to invest in road infrastructure spurred enactment of the Kenya Roads Board Act66 Which established the Kenya Roads Board to distribute fuel levies for road maintenance. It should also be noted that the National Construction Authority Act67 establishes the National Construction Authority to oversee the construction industry and coordinate its development. To this end, the Authority is required to encourage the standardisation and improvement of construction techniques and materials for road construction.

The National Transport and Safety Authority Act68 establishes the National Transport and Safety Authority, whose functions include to advise and make recommendations to the Cabinet Secretary on matters relating to road transport and safety; to implement policies relating to road transport and safety; to plan, manage and regulate the road transport system; to ensure the provision of safe, reliable and efficient road transport services; and to administer the Traffic Act and any other written law.

The NTSA has a Highway Code, which provides guidelines for road users, including pedestrians, cyclists, motorcyclists, children and animals. These guidelines provide information on how these road users can be safe while on the roads. The guidelines do not specifically provide for how the roads can be made safe for all these categories of road users. This means that the burden of road safety is currently placed upon road users, with focus being placed on adherence to rules by road users. This is in contrast to a position where the burden of road safety is placed on policy makers who should ensure that the roads are safe for all users, particularly in the way they are designed and maintained. However, the Draft National Road Safety Action Plan 2015-2020 provides for how roads can be made safe, particularly for vulnerable road users, who include pedestrians, bicyclists and motorcyclists.

It should be noted that the Departmental Committee on Transport, Public Works and Housing has delegated authority to perform a number of functions. The Committee:

  1. Reviews legislation;
  2. Reviews and approves the budget and expenditures for the execution of governance;
  3. Scrutinises governance activities, policies and programmes to determine whether they meet their intended objectives;
  4. Conducts investigations on special issues;
  5. Vets and approves executive appointments; and
  6. Provides a platform for public participation in the execution of specified business.69

A4.3 Planning

The Integrated National Transport Policy70 calls for the provision and maintenance of adequate sidewalks and pavements for pedestrians, separate lanes, parking bays, bridges, footpaths, and other facilities for non-motorised transport, including ramps for persons with disabilities. it aims to establish infrastructure, including footpaths, foot bridges and ramps for persons with disabilities in designated roads.

As part of operationalising this Policy, the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works is in the process of finalising the Manual for Street Design in Urban Areas.71 The manual aims to mainstream best practice street designs that include sustainable modes of transport and improved safety for vulnerable road users, particularly pedestrians and cyclists. It aims to reduce risk of death and serious injury, and provide more inclusive and safer urban road designs, thereby improving mobility and road safety. As already indicated in this report, the Draft Manual notes that: ‘The desire for safe, attractive and vibrant streets is reflected in a range of existing transport, planning, and environmental policies and acts … (which) advocate for the creation of street spaces that persons for all ages and abilities can enjoy together.’72

The Draft Manual identifies five complete road design principles which, notably, include the principle of universal access. this is how the principle is explained:
Universal access is the concept of designing transport services and environments that as many people as possible can use, regardless of age or ability. Streets designed according to universal access principles accommodate assistive devices for particular groups of persons with disabilities. … In order to ensure that persons with disabilities can make complete journeys, needs should be accommodated in each step of the transport chain, from origin to destination. Accessibility to transport is only as strong as its weakest link, so inclusive design must cover public passage, public transport stops and boarding, vehicle interiors, alighting, and passage to the final destination. An accessible environment has ample, well connected pedestrian facilities with unobstructed space for movement, consistent pavement surfaces, appropriately sloped ramps, and safe pedestrian crossings. Multiple elements of the streetscape must be designed in an integrated manner in order for the space to work. People with small children, people carrying heavy shopping or luggage, people with temporary accident injuries and older people can all benefit from an inclusive transport environment.

The other four principles are: designing for safety; designing for efficiency; gender-sensitive design; and modal hierarchy (with the default hierarchy being pedestrian, bicycle, public transport, freight, personal vehicle and personal vehicle parking.

A4.4 Structures for Stakeholder Involvement

Participation of the people is one of the essential national values and principles of governance. Parliament is constitutionally obligated to facilitate public participation and involvement in the legislative process. The courts have on occasion struck down laws which they deemed not to have involved public participation. In one instance, the High Court struck down provisions in the Standing Orders of Machakos County Assembly purporting to make it easier to remove the County Governor from office. These Standing Orders were adopted without public participation, particularly since the position of Governor is filled in through an electoral process involving the public. The Court noted that Once a law or policy is introduced into either chamber of Parliament, the relevant departmental committee invites members of the public to make their proposals which should be taken account of as the bill or policy is enacted or adopted.73 A number of civil society organisations, including the Consumers Federation of Kenya, participate wholesomely in law and policy making and indeed file judicial proceedings where they deem stakeholder participation has been undermined. Stakeholders with disabilities have organised themselves into advocacy initiatives, notably including the Caucus on Disability Rights Advocacy (CDRA) which was established to advocate for implementation of the Constitution as well as the CRPD. The CDRA has in particular been advocating for the overhaul of the Persons with Disabilities Act which is quite dated, having been enacted in 2003, three years before the CRPD was adopted and seven years before the Constitution was promulgated. It should also be noted that Members of Parliament with disabilities from both Houses engage with policy and law-making within and without Parliament under the aegis of the Kenya Disability Parliamentary Caucus, while members of county assemblies with disabilities similarly engage under the aegis of the Kenya Disability Counties Association. It should be noted that organisations of and for persons with disabilities may be registered under the Persons with Disabilities Act. Entities may also be registered as nongovernmental organisations under the Public Benefits Organisations Act.74

Kenyans with disabilities have also petitioned public bodies requiring them to do or desist from doing specified acts. Illustratively, in July 2019, the Open Institute75 petitioned three public agencies to recognise the white-cane as a symbol of blindness. The concerns raised in the petition are indeed pertinent to this report. It:

  1. Raised concerns about the safe movement of blind and vision-impaired persons in the cities, and called on the Kenya Roads Board to develop and enforce global universal design standards across Kenya’s roads.
  2. Called on the National Construction Authority to enhance safe and accessible urban spaces that can be accessed and used by white cane users.
  3. Called on the two agencies to ensure the construction of tactile markers, consistently working streetlights, sonic traffic lights, drop curbs, safe crossing points, disabled parking slots, and universally designed walkways that facilitate the safe use of white canes.
  4. Called on the National Transport and Safety Authority to sensitise and train motorists to yield the right of way to every white cane user.
  5. Called on the Authority to develop and adopt adequate awareness programmes on the white cane as a form of non-motorised transport within the national driving training curriculum. 76

We have no indications about whether any actions were taken in response to the petition.

A5 State or Provincial-Level Strategy, Law and Policy

A5.1 Nairobi County

Nairobi County succeeded the City Council of Nairobi once the Constitution was promulgated in 2010. The County is primarily governed pursuant to the County Governments Act.77

In February 2020, the National Government and the Government of the County of Nairobi agreed to transfer from the latter to the former a number of critical government functions for a period of two years. As already indicated in the report, the transfer of functions from one level of government to the other is anticipated where it is felt that the particular functions would thereby be better implemented. Transferred functions including:

  1. County health services;


  2. County transport services;


  3. County public works, utilities and ancillary services; and


  4. County government planning and development.78


    A5.1.1 Equality and Inclusion


    A5.1.1.1 Equality

Section 97 of the County Governments Act requires county governments, public and private organisations as well as individuals to observe non-discrimination and equality of treatment in the areas of economic, educational, social, religious, political and cultural life of marginalized and minority groups. They should also observe special measures of affirmative action for marginalized and minority groups to ensure their enjoyment of equal rights with the rest of the population. These provisions, although rather oblique, do cover persons with disabilities and older persons in light of the anchoring constitutional provisions which are more explicit in their protection of persons with disabilities and older persons from discrimination. The context for these provisions, as explained in previous sections of the report, should be understood in relation to the functions which counties perform. In real terms, pedestrians do not make the distinction between whether they are using County-regulated roads or roads regulated by the National Government, and no clear-cut anti-discrimination test cases have emerged.

A5.1.1.2 Accessibility

In exercise of its legislative authority on matters relating to county affairs, the Senate in 2018 passed the County Planning (Roads, Pavements and Parking Bays) Bill, 2018,79 whose objects and purposes included: providing a framework for the planning and construction of access ways from major roads in each county to ensure the safety of road users; and promoting the development of a well-planned environment in counties to achieve unhindered and adequate access to buildings from major roads by members of the public. Clause 5 of the Bill obligates the County Executive to ‘… make provision for the access and use of buildings, roads, streets, lanes, alleys, parking bays and pavements by persons with disabilities in accordance with section 21 of the Persons with Disabilities Act, 2003.’ Clause 9 requires crossings for use by civilians on major roads to be designated, including zebra crossings and foot-bridges. Under Clause 10, access-ways to commercial buildings should be allocated adequate space for access by members of the public. A provision of particular importance to pedestrians with disabilities is Clause 13 which requires that pavements should be used only by pedestrians, and that: ‘… A person shall not drive, park, erect a structure, or carry out any trade or commercial activity on a pavement.’ This, however, is an example of another law whose implementation is uncertain since no literature on its implementation is available.

In 2019, the Open Institute undertook a study on the extent to which facilities in Nairobi City were accessible to persons with disabilities. The study assessed the extent to which buildings and streets in Nairobi City took account of universal design. It used a web app to mapped 510 buildings and 58 streets. The study’s findings of particular relevance to this report relate to barrier-free access to the external environment. The study found that of the 58 mapped streets, there was only one sonic light; that of the 58 mapped streets, only one street light was configured to allow pedestrians to cross safely; that of 58 streets, there were only two allotted parking slots for persons with disabilities. the study also made findings regarding the accessibility of pavements and the placement of resting points. 80

A5.1.1.3 Disability

The Nairobi City County Persons with Disabilities Act of 2015 establishes the Nairobi County Disability Board whose functions include liaising to ensure county services are provided to persons with disabilities. The Act is however to date largely inconsequential since the Act too is overshadowed by the national legislation on disability. Although the Act guarantees persons with disabilities a barrier-free and disability-friendly environment to enable them to have access to buildings and roads, the national law too has similar provisions. It should be noted that disability laws enacted by County Assemblies across the country have had indifferent levels of implementation since far too often they have purported to perform functions which in fact are in the national rather than county jurisdiction.

A5.1.1.4 Older People

No laws specifically covering older persons have been enacted by the County.

A5.1.2 Transport

The government of Nairobi County has a department for roads and transport with the responsibility of planning, developing and maintaining county roads, street lighting, traffic and parking. As already explained in this report, this is one of the functions which the Nairobi County agreed to transfer to the national government for a period of two years.

The Nairobi City County Non-Motorised Transport Policy81 identifies a number of mobility challenges in the city. It notes that people with disabilities are not easily able to negotiate the infrastructure: traffic signals for the blind are not provided; and ramps are far too steep for the disabled. It recognises that people with disabilities require larger dimensions to accommodate wheelchairs and crutches as well as continuous sidewalks and way finding options for the blind or visually impaired. The Policy aims to fully integrate non-motorised transport as part of the Nairobi transport system by creating a safe, cohesive and comfortable network of footpaths, cycling-lanes and tracks, green areas and other support amenities. Furthermore, it aims to put in place laws and regulations to ensure that non-motorised transport facilities and areas are not encroached by motorised modes and other street users. One of the Policy’s priorities is to adapt universal design principles for streets, which would require the design or redesign of streets, roads and highways in Nairobi. Again, there is no literature on implementation.

A5.1.3 Planning

One of the pillars of the Nairobi County Integrated Development Plan (2018-2022) covers social protection for youth, women and persons with disabilities. the Plan establishes the inadequacies of the road network to support current and future demands. Identified difficulties include road congestion and untarmacked roads, which undermine socioeconomic growth. The Plan does not address barrier-free access.

A5.1.4 Structures for Stakeholder Involvement

Structures have been established for stakeholder involvement in county affairs with the aim of providing citizens with timely access to information on policy formulation and implementation as well as the process of such formulation or implementation. these structures also specifically recognise the need to enable the protection and promotion of the interests and rights of minorities, marginalized groups and communities and their access to relevant information, in terms of Section 87 of the County Governments Act. The structures, according to Sections 88-91 of the Act, include the following:

  1. The citizen’s right to petition their county government on matters for which the governments are responsible for.
  2. The right to demand local referenda on county laws and petitions or planning and investment decisions.
  3. The obligation of counties to use strategies such as information communication technology-based platforms, town-hall meetings, and budget preparation and validation forums.

A5.2 Mombasa County

Mombasa County is located on Kenya’s coast. It is home to Kenya’s second city, Mombasa, and hosts significant transport infrastructure including a seaport, airport, and rail and road facilities. Mombasa was constituted as a county in 2013, and it has six sub-counties. Mombasa City is the headquarters of Mombasa County.

A5.2.1 Equality and Inclusion

A5.2.1.1 Equality

As we shall explain below, Mombasa County is in the process of enacting disability legislation. It has not enacted other equality legislation.

A5.2.1.2 Accessibility

Again, no legislation on accessibility has been enacted.

A5.2.1.3 Disability

A bill has been before the Mombasa County Assembly which, if enacted, will establish the Mombasa County Disability Board. One of the Board’s envisaged functions will be to ensure that the priorities of persons with disabilities are mainstreamed in county transport.82

A5.2.1.4 Older People

No literature on this is available. Information however can be drawn from interviews with officials and stakeholders in the County.

A5.2.2 Transport

Like Nairobi County, the government of Mombasa County has a department for roads and transport with the responsibility of planning, developing and maintaining county roads, street lighting, traffic and parking.

The Mombasa County Roads Act83 empowers the County Government to construct and maintain county roads and cycle ways for the use of pedal cyclists or non-motorised transport. The County Government may demolish encroachments or structures on county roads.

A5.2.3 Planning

Commuting within Mombasa County for persons with disabilities raises particular peculiarities since Mombasa City is located on an island which is served by ferries as well as other forms of transport. Yet the Mombasa Integrated Development Plan (MIDP) acknowledges that concerns of persons with disabilities have not been adequately taken account of or addressed in county planning: that most buildings do not consider needs of disabled people such as ramps and walkways, and that transport facilities do not take account of the needs of persons with disabilities, thereby limiting their access to government and other services.84 the key deliverables identified by the MIDP include improving mobility and accessibility and reducing loss of life.

A5.2.4 Structures for Stakeholder Involvement

The structures for stakeholder involvement described in A5.1.4 above apply to counties across the country. The field study should confirm the extent to which those structures are actually operational.

A6 City-Level Strategy, Law and Policy

The county laws, strategies and policies for Nairobi County and Mombasa County described in the preceding section apply to Nairobi City and Mombasa City respectively. Nairobi City is synonymous with Nairobi County while Mombasa City is the headquarters of Mombasa County.

B Laws that can be used only by or on behalf of pedestrians with specific characteristics

B1 Actions for Breach of Constitutional Rights

B1.1 Action for Breach of Constitutional Rights

B1.1.1 Description and Examples

Chapter Four of the Constitution contains the Bill of Rights. Various sections of this Chapter can be relied upon to bring an action for discrimination before the courts. Article 27 provides for equality and freedom from discrimination, and specifically, Article 27(4) provides for non-discrimination on a number of grounds, including age and disability. Article 54 elaborates the application of human rights to persons with disabilities, while Article 57 does the same with regard to older members of society. Article 54(1)(c) provides for the right of access by persons with disabilities to all places, including public transport. This provision establishes a basis for a claim by persons with disabilities in contexts where reasonable measures have not been put in place in order to allow for their access in the context of public transport. Article 57(a) provides that older members of society have the right to fully participate in the affairs of the society, and this participation would include the ability to access all places. Claims for discrimination where there is a limitation on access to various places either by persons with disabilities or older members of society can be brought pursuant to these provisions under the Constitution.

These provisions of the Constitution form the basis upon which an action for discrimination on the ground of disability or age may be brought before the courts, but they should however be read together with the provisions of the relevant statutory law, because the implementation of constitutional provisions is effected through statutory provisions. While no specific law has been enacted in respect of older persons, the relevant statute in relation to disability is the Persons with Disabilities Act.

A matter of particular relevance is the definition of disability established in the Constitution which varies from the definition of disability in the Persons with Disabilities Act. Article 260 of the Constitution defines disability to include: ‘… 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.’ This definition does not take due account of the description of persons with disabilities in the CRPD which seeks to locate disability in the realm of social pathology rather than individual pathology. Other earlier statutes are indeed even more anchored in the medical approach to disability. Section 2 of the Persons with Disabilities Act defines disability as ‘… a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic or environmental participation.’ As highlighted in (b) of this subsection, courts have indeed used these definitions of disability to provide redress to litigants with disabilities.

B1.1.2 Remedies, Sanctions or Other Outcomes

There are a number of possible remedies for violation of constitutional rights under the Constitution, and these would have to be specifically sought. One of the most common remedies is a declaration that specific rights have been violated in specific ways. A claimant may also seek orders that direct certain actions to be done so as to address the factors that lead to discriminatory outcomes. Where direct harm is suffered, damages may also be sought.

For example in Paul Pkiach Anupa & Another v Attorney General & Another85, a claim was brought both under the constitutional provisions as well as section 21 of the Persons with Disabilities Act. The petitioner brought a case against the Judicial Service Commission, after he was unable to access the courts with his lawyer so as to attend court sessions in a different matter. He argued that because he could not access the courts, this affected his right to access to justice. In addition to seeking a declaration that the courts were not physically accessible to persons with disabilities, the petitioner also sought orders that all courts in Kenya be fitted with ramps to facilitate access to all courts by persons with all forms of disabilities, and an order compelling the Minister at the time in charge of Special Programmes to issue a Gazette Notice that would compel Ministries, Departments of Government and Local Authorities to ensure that there is provision for suitable ramps in public buildings, including the courts.

It should be noted that the effect of a declaration is not necessarily to then require that the specific factors leading to discriminatory outcomes will be remedied. In Duncan Otieno Waga v Attorney General86, the Industrial Court issued a declaration that the claimants employment had been terminated prematurely and in violation of section 22 of the Persons with Disabilities Act, which provides that, ‘a proprietor of a public building shall adapt it to suit persons with disabilities in such manner as may be specified by the Council; and all proprietors of public buildings shall comply with subsection (1) within five years after this section comes into operation.’ The court did not however issue any order compelling the police service to take remedial measures so as to ensure implementation of section 22 of the Persons with Disabilities Act. Consequently, while declarations are common remedies sought with regard to actions for discrimination, their value in terms of leading to tangible change may be called into question.

It is also possible to seek judicial review orders in cases where the decisions and actions of an administrative body may result in the violation of constitutional rights. Thus, for purposes of ensuring inclusive public spaces, one may approach the courts for judicial review orders that compel the state or its agents to ensure that roads and streets are safe. For example, in the case of Republic v Nairobi City County Government & 6 others Ex Parte Mike Sonko Mbuvi87, where the then Senator of Nairobi County sought judicial review orders against the Nairobi City County Government**,** the** Cabinet Secretary for Transport & Infrastructure,** the** Principal Secretary, State Department of Transport,** the Kenya National Highways Authority**,** the** Kenya Urban Roads Authority and the **Attorney General. The basis of the judicial review application was that respondents had taken the decision to re-design major roads within Nairobi city illegally, and no provision was made for alternative routes, there was no public participation in making the decision as is required by the Constitution, there were cost implications that imposed an unfair tax burden on the citizens of Kenya hence resulting in the violation of the Constitution, and the closing of some sections of the roads posed grave danger to motorists and the roads were designed in a manner that was not safe for all road users. Further, the respondents had erected or allowed to be erected rumble bumps on various roads in Nairobi, for purposes of ensuring the safety of pedestrians, and the applicant also challenged the erection of such bumps along highways and other urban roads. The court allowed part of the application and issued an order of mandamus directing the Nairobi City County Government to remove bumps and rumble strips along the Thika Superhighway and instead ensure that pedestrians use footbridges for their safety, and in so doing, the court noted that ‘there was no rational basis for erecting rumble strips and bumps when the authorities concerned have erected footbridges for the benefit of pedestrians.’

B1.1.3 Enforcement

Enforcement of actions for breach of constitutional rights can be done in four key ways:

  1. Through the courts;


  2. Through constitutional commissions;


  3. Through the sub-regional court; and


  4. Through the continental human rights system.


  5. Enforcement through the Courts


Article 22 of the Constitution provides for the enforcement of human rights through the courts. It provides for the right of every person to institute court proceedings where a claim that a fundamental right has been denied, infringed, violated or threatened is made. Further, Article 22 provides that court proceedings of this nature may be instituted by a person acting in their own interest or by a person acting on behalf of another person who cannot act in their own name; a person acting as a member of, or in the interest of, a group or class of persons; or a person acting in the public interest or an association acting in the interests of one or more of its members. In addition, claims under Article 22 are to be made with as much ease as possible, hence the requirements that court formalities shall be kept to a minimum, no court fees shall be charged, unreasonable restrictions caused by procedural technicalities shall be removed, and the possibility of allowing individuals or organisations with expertise to appear as a friend of the court.

The provisions of the Constitution should be read together with the provisions of the Persons with Disabilities Act. Section 21 of the Persons with Disabilities Act on accessibility and mobility provides that persons with disabilities are entitled to a barrier- free and disability-friendly environment to enable them to have access to buildings, roads and other social amenities, and assistive devices and other equipment to promote their mobility. It should be noted that the Persons with Disabilities Act was passed in 2003, which is before the Constitution was promulgated, hence the concern that there are instances of incongruence between the statute and the Constitution. For example, in the case of Duncan Otieno Waga v Attorney General88, the Industrial Court noted that the rights that were the subject of the dispute were not enshrined in the Constitution, but were instead provided for under the Persons with Disabilities Act and various international treaties. The facts of the case were that the claimant was retired from the police force due to a visual impairment, which he argued contravened his rights under various sections of the Persons with Disabilities Act, and this being a labour dispute, the relevant section of the Act that was alleged to have been contravened was section 12, which provides for specific employment rights for persons with disabilities, including the non-denial of access to suitable employment for persons with disabilities and also equal treatment for employees with disabilities. Further, section 15 of the Act provides that the retirement age for persons with disabilities shall be 60 years. The claimant argued that by forcing him to retire early on the basis of his disability, these rights had been contravened, and consequently, he had been discriminated against.

The question remains what are the implications of taking the view that some rights that persons with disabilities enjoy are not provided for under the relevant sections of the Constitution, and thus must be sought elsewhere, including the statutory laws and international treaties. More specifically, is it possible that the law may be read and interpreted in a manner that may be prejudicial to persons with disabilities? Indeed, this was reflected in the decision of the High Court, when this same matter was brought before that Court in Duncan Otieno Waga v Attorney General and the claimant argued that he had been discriminated against at a time when Kenya’s current Constitution had not yet been promulgated, because the court found that disability was not a basis for discrimination under the then operative Constitution, and this was despite the existence of the provisions of the Persons with Disabilities Act.

Where a court issues specific orders, they will generally be enforced through the process of execution, as is provided for under the Civil Procedure Act. Execution only applies with regard to court orders that are capable of execution, and not with respect to declaratory orders.89 An order for damages or for an injunction is therefore capable of execution and in this regard, the court which issues a decree or order is also mandated to execute it. There are a number of ways in which a court may execute its orders, and these include delivery of property that is so ordered; attachment and sale of property, or sale without attachment of property; attachment of debts; arrest and detention in prison; appointment of a receiver; initiation of contempt of court proceedings are against a party that refuses to follow prior court orders; or in such other manner as the nature of the relief granted may require.

Enforcement of reliefs issued by the courts against government departments is quite problematic, particularly because where the court makes a financial award, Order 29 of the Civil Procedure Act, provides that attachment of debts or appointment of a receiver shall not be possible with respect to the government or government agencies. Further, Section 21(4) of the Government Proceedings Act90 provides that ‘s*ave as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any money or costs, and no person shall be individually liable under any order for the payment by the Government or any Government department, or any officer of the Government as such, of any money or costs’. *

This therefore means that it is not practically possible to pursue execution of court orders against the government. There are a number of issues that might affect the ability of one to obtain reliefs issued by the court against government agencies, including the time it takes for the government or government agencies to implement court orders, the procedure that one would have to follow in ensuring the implementation of court orders, and the recourse where court orders are not or cannot be implemented. In Kenya Society for the Mentally Handicapped v Attorney General and 7 Others91  the court stated inter alia that ‘coercive orders of the court should only be used to enforce Article 35 where a request has been made to the State or its agency and such request denied. Where the request is denied, the court will interrogate the reasons and evaluate whether the reasons accord with the constitution. Where the request has been neglected then the state organ must be given an opportunity to respond and peremptory order made should in the circumstances justify such an order’.

In this regard, it should be noted that most claims for discrimination relating to accessibility of public spaces might be brought against government agencies.

  1. Enforcement through constitutional commissions

Constitutional rights may also be enforced through constitutional commissions. Thus, one may not need to go to court in order to have the rights enforced, but may instead approach constitutional commissions for enforcement. Article 59 of the Constitution establishes the Kenya National Human Rights and Equality Commission, which in practice was split into three commissions- the National Gender and Equality Commission, the Kenya National Commission on Human Rights and the Commission on Administrative Justice. The mandate of these commissions, inter alia, is to promote respect for human rights and to develop a culture of human rights in the country. They are also mandated to promote protection and observance of human rights in public and private institutions; to monitor, investigate and report on the observance of human rights in all spheres of life; to receive and investigate complaints about alleged abuses of human rights and to take steps to secure appropriate redress where human rights have been violated; to investigate or research matters in respect of human rights and make recommendations to improve functioning of State organs; ensure the State’s compliance with its obligations under treaties and conventions relating to human rights; and to provide remedies for complaints relating to human rights. Article 59(3) provides that every person has the right to bring complaints before these commissions, alleging that a right or fundamental freedom under the Bill of Rights has been denied, violated, infringed or threatened.

The three specific commissions established pursuant to Article 59 of the Constitution have been operationalized by the following Acts of Parliament: the National gender and Equality Act, 2011 which operationalizes the National Gender and Equality Commission; the Kenya National Commission on Human Rights Act, 2011 which operationalizes the Kenya National Commission on Human Rights; and finally the Commission on Administrative Justice Act 2011, which operationalizes the Commission on Administrative Justice.

There is overlap among the three commissions, so that there is no clear demarcation concerning the nature of human rights complaints that each one handles. However, issues of discrimination provided for under Article 27 of the Constitution seem to fall under the mandate of the National Gender and Equality Commission. Consequently, questions of discrimination on the basis of disability are likely to be handled by the National Gender and Equality Commission. NGEC reports that it has handled 52 complaints since it was established in 2011, but the details of these complaints are not provided in its website. While the NGEC may be mandated to deal with issues of discrimination under Article 27 of the Constitution, this does not preclude the other two commissions from dealing with issues of discrimination, especially if it is taken into account that questions of human rights violations can touch on several issues at once.

Each of the Acts that establish the three Commissions sets out the procedure for bringing complaints and the remedies available. Essentially, section 41 which sets out the remedies is common in all three statutes, and it provides as follows:
(a) Where the inquiry discloses a criminal offence, refer the matter to the Director of Public Prosecutions or any other relevant authority or undertake such other action as the Commission may deem fit against the concerned person or persons; (b) recommend to the complainant a course of other judicial redress which does not warrant an application under Article 22 of the Constitution (we have seen already that Article 22 provides for the enforcement of the Bill of Rights through court action and is the main provision under the law that mandates the court to hear cases relating to the violation or threatened violation of human rights); (c) recommend to the complainant and to the relevant governmental agency or other body concerned in the alleged violation, other appropriate methods of settling the complaint or to obtain relief; (d) provide a copy of the inquiry report to all interested parties; and (e) submit summonses as it deems necessary in fulfilment of its mandate.

  1. Enforcement through the East African Court of Justice

Established by the East African Community treaty, this court is mandated to ensure compliance with this treaty. It has jurisdiction to hear cases relating to interpretation and application of the treaty, although this jurisdiction may be expanded to include other issues such as human rights. However, the court has not yet been given human rights jurisdiction, although the Court has interpreted that it is not precluded from hearing matters relating to human rights.92 In reaching this conclusion, the court has relied on the provisions of articles 6 and 8 of its establishing treaty, which provide for the operation principles of the EAC and these include, inter alia, protection and promotion of human and peoples’ rights. Member states may bring cases against each other before the Court, where it is alleged that there has been a violation of the treaty. Also, Article 30 of the Treaty provides that “any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of the Treaty.” In the case of Independent Medico-Legal Unit vs Attorney General of the Republic of Kenya,93 the applicant brought the matter before the East African Court of Justice after human rights violations involving forced disappearance, torture and execution of about 3000 people living around the Mt. Elgon area. The applicant argued that the failure by the state to prevent, investigate and punish those who were involved in these acts amounted to a violation of the EAC Treaty, particularly the provisions of Articles 6 and 8. The court took note of Article 27(2) which provides that:
The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.”

The court held that although the case involved questions of human rights, this did not prevent it from discharging its responsibility in determining whether Kenya had violated the provisions of the treaty. Thus, disability rights issues, may be litigated before the EACJ, and this would provide an additional means of enforcing the rights of persons with disabilities, particularly in context such as Kenya, where these rights have received little attention.

The Court may issue advisory opinions on questions of law arising from the treaty. Other remedies are generally declaratory in nature, and it may also make recommendations for amendments to legislation in order to ensure conformity with the treaty. The Court may also make orders that have the effect of bringing about financial obligations.

Once the Court issues orders, Article 38(3) of the Treaty requires member states and the EAC Council to take immediately all measures necessary to implement a Court judgment. Any award which imposes a financial damages obligation will be enforced through civil procedure rules of the member state where the judgment is enforced. Article 39 also allows the Court to make binding interim orders. There are no procedures to sanction a party that fails to implement a judgment against it.

D) Enforcement through continental quasi-judicial bodies

A complainant who has exhausted local remedies may also lodge a complaint alleging human rights violation in breach of the African Charter on Human and Peoples’ Rights. The African Commission on Human and Peoples’ Rights has jurisdiction to make determinations of human rights violations and provide redress which may include compensation or requirements for law reform. In Purohit and Moore v The Gambia, the complainants lodged a complaint on behalf of mental patients detained in a psychiatric unit in The Gambia. The complaint challenged the Lunatics Detention Act, alleging violation of various articles of the Charter. In finding for the complainants, the Commission developed disability-specific jurisprudence in a number of areas including on the right to be free from torture, and the right to political participation.94 The Commission has not determined cases on barrier-free access.

B1.2 Action for Breach of Constitutional Rights 2; Action for Violation of Environmental Rights and the Environmental Management and Coordination Act

B1.2.1 Description and Examples

Cases relating to environment and land may also be brought before the courts, where for example manholes are left open, thus leading to various types of harm. Article 42 of the Constitution recognizes and provides for a right to a clean and healthy environment. The Environmental Management and Coordination Act (EMCA) ensures the implementation of the right to a clean and healthy environment, and hence, the constitutional provisions must be read together with the provisions of this Act. At section 2, EMCA defines environment as follows: ‘environment includes the physical factors of the surroundings of human beings including land, water, atmosphere, climate, sound, odour, taste, the biological factors of animals and plants and the social factor of aesthetics and includes both the natural and the built environment.’ Thus, from this definition, the built environment, which forms part of the physical factors of the surrounding of human beings can be regulated by environmental law. Section 3(2) of EMCA further provides that: the entitlement to a clean and healthy environment includes the access by any person in Kenya to the various public elements or segments of the environment for recreational, educational, health, spiritual and cultural purposes, and this therefore raises the issue of accessibility, which is relevant within the context of disability rights. EMCA further establishes the National Environmental Management Authority, which is mandated, inter alia, to co-ordinate the various environmental management activities being undertaken by the lead agencies and promote the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable yield basis for the improvement of the quality of human life in Kenya. What this means is that environmental management, as a means of ensuring a clean and healthy environment, has the potential of contributing towards accessibility and inclusivity of public spaces.

B1.2.2 Remedies, Sanctions or Other Outcomes

Article 70 of the Constitution provides for the enforcement of environmental rights. Thus, where one alleges that a rights to a clean and healthy environment under Article 42 has been infringed, violated or threatened, then they can bring court action and the court may make such orders as to prevent, stop or discontinue any act or omission that is harmful to the environment; compel any public officer to prevent or discontinue any act or omission that is harmful to the environment; or provide compensation for any victim of a violation of the right to a clean and healthy environment.

B1.2.3 Enforcement

Actions under this section will entail going to court for remedies, and thus enforcement will follow the same procedure as discussed in section B1.1 C.

B2 Other Equality-Based Actions

These would be the same as in B1, and would generally be based on the constitutional provisions that prohibit discrimination.

B3 Other Types of Action Only Relating to Pedestrians with Specific Identity Characteristics

These would be the same as in B1, and would generally be based on the constitutional provisions that prohibit discrimination. Article 27 of the Constitution prohibits discrimination on the basis of a number of grounds, including health status, age and disability. As already noted in B1, Article 54 of the Constitution further provides for the protection of the rights of persons with disability, including their entitlement to reasonable access to all places. Article 57 provides for the rights of older members of society and provides that the state shall take measures to ensure the right of older persons to participate fully in the affairs of society; to live in dignity and respect and be free from abuse; and to receive reasonable care and assistance from the family and the state.

These constitutional provisions can therefore be the basis upon which persons with disabilities and older persons can bring an action before the courts for cases relating to pedestrian access to public spaces.

While courts have in the past decade been quite amenable to entertain constitutional claims, persons with disabilities still do not readily seek judicial redress on a priority basis. Litigation on barrier-free access therefore remains the exception rather than the rule.

C Laws that can be used by pedestrians generally or by NGOs on behalf of pedestrians generally

General Principles

Actions under the Law of Torts, and in particular, the tort of negligence, will mainly be relied upon to address the challenges that pedestrians may face in this particular context. Thus, it is important to begin by first amplifying the general principles around the tort of negligence and the way the courts in Kenya have developed jurisprudence around it.

The general principles of the law of torts may be used to bring an action in court, where one suffers harm as a result of hazards on roads and streets. The main action under the law of torts that may be used in this context is an action for negligence. In order for the tort of negligence to hold, one must prove that a duty of care owed to them by another person has been breached by that other person.95

A person who suffers direct harm as a result of the actions or inactions of persons who have the responsibility to ensure safety of roads, streets and other public spaces, will have the locus standing to bring an action for tortious liability through the courts. Such an action must be brought by someone who has a direct interest in the case, and therefore unlike the issues relating to violation of constitutional provisions, the scope is limited for persons who do not have a direct interest in such cases to bring the matter before the courts. Thus, NGOs and other types of organizations that may generally be interested in promoting the rights of pedestrians may not be able to rely on the law of torts to bring cases before the courts, but this does not exempt them from offering support to persons who do bring such cases before the courts. Thus for example, NGOs may offer legal aid to litigants in such cases.

C1 Failing to safeguard pedestrians from holes, roadworks, traffic flow and other hazards

C1.1 Actions for the tort of negligence

C1.1.1 Description and Examples

In principle, where one suffers harm due to open manholes, unsafe roadworks or other hazards on the roads, it is possible to bring an action against the specific entities which have a duty of care to ensure that roads and streets are safe for all users. Republic v Minister for Nairobi Metropolitan Development & 2 others Ex parte Timwood Products Limited & 13 others 96 was a judicial review application challenging decisions to carry out repairs along a street where the applicants’ businesses were situated in the city of Nairobi, because ‘the repairs that were carried out resulted in the digging up of one side of the road including the access points and parking  bays utilized by the applicants and their customers; destruction of the pedestrian pathways; and imposition of barriers to the parking.’ In rejecting the applicants’ case, the court noted that an action for tortious liability and breach of contract through a civil suit is the ideal action that can be brought in circumstances where the issue concerns that of safety and accessibility during road construction works.

C1.1.2 Remedies, Sanctions or Other Outcomes

Remedies for an action under the law of torts include damages and injunctions. Injunctions would be particularly useful, as they may compel one either to stop acting in ways that cause injury or to act so as to avoid the occurrence of injury. In order to win any remedies for actions for tortious liability, Kenyan jurisprudence indicates that a person who alleges that they have suffered injury due to negligence resulting in road traffic accidents must specifically prove each issue that is alleged. Thus, they must prove that the accident occurred; the people who were involved in the accident and their liability under the law; the injury and damages suffered; and where a motor vehicle is involved, ownership of the motor vehicle must also be proved. Evidence to prove each of these issues must be adduced, and where any of these issues is not proved, then it might lead to the case failing.

In this regard, in Mary Njeri Murigi v Peter Macharia & another,97 the court found in favour of the plaintiff and awarded damages, however. The plaintiff however had to prove the particulars of the negligence on the part of the defendants and also they had to prove the specific damages suffered. In proving damages, the plaintiff adduced evidence of financial support that the deceased provided to her and her family and therefore proved the loss of future financial support due to the death of the deceased. Consequently, what this means is that for one to win damages for an action of negligence, they must then prove financial loss. Thus, where pedestrians suffer physical harm due to road accidents resulting from negligence, they must prove financial loss in order to prove their case for damages.

C1.1.3 Enforcement

Cases relating to torts are brought before the courts in the form of civil suits and the Civil Procedure Code sets out the procedure that should be followed. Court orders are also enforced in accordance with the civil procedure rules, as is discussed in B.1.1 C. Where the case involves government agencies, the issues around enforcement discussed in B.1.1 C are also relevant.

C2 Inaccessible or unsafe design of streets or street features

C2.1 Actions for the tort of negligence

C2.1.1 Description and Examples

It is also possible to rely on the general principles of the law of torts to bring an action before the courts where one suffers harm as a result of inaccessible or unsafe design of streets or street features. See the decision of the court in Republic v Minister for Nairobi Metropolitan Development & 2 others Ex parte Timwood Products Limited & 13 others 98 earlier discussed.

C2.1.2 Remedies, Sanctions or Other Outcomes

This will be the same as in C1.

C2.1.3 Enforcement

This will be the same as in C1.

C3 Obstructing roads or pavements

C3.1 Actions for the tort of negligence

C3.1.1 Description and Examples

An action for negligence may also be brought in this context, following the decision of the court in Republic v Minister for Nairobi Metropolitan Development & 2 others Ex parte Timwood Products Limited & 13 others 99

C3.1.2 Remedies, Sanctions or Other Outcomes

This will be the same as in C1.

C3.1.3 Enforcement

This will be the same as in C1.

C4 Driving, cycling and other travelling on roads which might endanger pedestrians

C4.1 Actions for the tort of negligence

C4.1.1 Description and Examples

Again, the general principles of the law of torts may be relied upon in a civil suit, where injury occurs as a result of driving or other travelling that may endanger pedestrians. For example, the case of Lily Becher Barclay -V- Kirima Kamau100 where the plaintiff sustained injuries when she was run down by the defendant’s motor vehicle. She sustained a direct crush injury to the left foot with associated fracture for the 3rd, 4th and 5th metatarsal bones of the left foot and crack fracture of the head, of the first metatarsal, bruising of both knees, mild concussion and injury to the spine (lumber region), and she would require an operation to correct the severed foot deformities. The injuries sustained by the plaintiff resulted in difficulties in walking and she was unable to pursue her usual social activities such as dancing, playing tennis, skiing and long walk. General damages for pain suffering and loss of amenities assessed were at Kshs.200,000/=.

In Mary Njeri Murigi v Peter Macharia & another101 the plaintiff sued on behalf of the estate of the deceased who died as a result of a road traffic accident. The deceased was run over by a public service vehicle while he was crossing the road at a pedestrian crossing point in a busy street in Nairobi’s central business district. One of the main issues for determination was whether in fact the defendant was 100% liable, or whether the deceased was also liable for the accident, to the extent that he was not very careful while crossing the busy road. This principle, where pedestrians may also be held liable for accidents has been canvassed by the courts in various cases, and is generally relied upon to reduce the liability and therefore amount of damages paid out to pedestrians who are victims of road traffic accidents. In this regard, the court cited with approval the decision in Joseph Muturi Koimburi V Mercy Wahaki Mugo102 where the court held that:
Having   found that the respondent   was hit while crossing the road, the lower court then was wrong in apportioning liability and finding the appellant 70% to blame.  In my view, the respondent was fully to blame for her reckless behaviour in attempting to cross a busy dual carriage way at that time of the night when in fact the foot bridge was available for that purpose, in fairly close proximity.  Any driver of ordinary prudence is not expected to find pedestrians on that part of the road, at that hour of the night, and the appellant   could not possibly be blamed for that accident.  I adopt the reasons for the court in a similar situation in the case of Waindi Vs Pharmaceutical Manufacturing Company Ltd [1986] KLR 506.

From the decision in Joseph Muturi  Koimburi V Mercy Wahaki Mugo, where a pedestrian may be found to have been negligent, thus contributing to the accident, it is not merely about a pedestrian being careful while using roads or streets, but rather that the pedestrian disregarded the use of safety functions and measures put in place, and as a result used the roads and streets in a manner that compromised their own safety. In that case, respondent disregarded the use of a pedestrian footbridge and instead chose to cross a dual carriage way at night.

In Francis Muiruri Mwangi v John Ngugi103, which is a case involving a cyclist, but which would still be relevant in illustrating how the courts assess which party is to blame for an accident, the appellant Francis Muiruri Mwangi was cycling along Nairobi- Thika when he was knocked down by a motor vehicle belonging to the respondent John Ngugi. The appellant sustained injuries on his body and sued the respondent for recovery of general damages as well as special damages. The court found that both parties could share blame for the accident in the ratio of 30% for the appellant cyclist and 70% for the respondent motorist. The court found that both parties could have avoided the accident by adhering to traffic rules, and went on to determine the extent to which both had breached the traffic rules. The facts about the accident were that the cyclist was cycling ahead of the motorist, while the weather was clear. The cyclist saw the motorist approaching from behind, while the motorist saw the cyclist ahead. The cyclist then took a right turn at the same moment as the motorist was attempting to overtake him. This resulted in the motorist knocking into the cyclist, which resulted in injury. The court found that the motorist bore greater responsibility for the accident because: ‘The respondent was driving behind the appellant and therefore bore a greater duty of care since he saw the cyclist ahead of him, and should have prudently ensured that it was safe for him to overtake the appellant since he was driving a lethal machine.’

These two cases can be distinguished from Mary Njeri Murigi v Peter Macharia & another, where the deceased was actually crossing the road at a pedestrian crossing and was thus using the safety features that have been put in place for use by pedestrians.

C4.1.2 Remedies, Sanctions or Other Outcomes

This will be the same as in C1. However, it is important to again emphasise that in awarding damages, the court will assess the liability of each party, and where a pedestrian is found to be partly liable for any accident that results in their injuries, as discussed in part (a) above, then the court will generally award less damages.

C4.1.3 Enforcement

This will be the same as in C1.

C5 Cycling, scootering and other travelling on pavements which might endanger pedestrians

C5.1 Actions for the tort of negligence

C5.1.1 Description and Examples

In principle, one can bring an action for the tort of negligence if they suffer harm due to cycling or other travelling on pavements that causes harm to them as pedestrians. The same principles as those relating to dangerous driving would be applicable where motorbikes are concerned, because motorbikes are regulated in the same manner as motor vehicles, and motor cyclists undergo the same type of registration as drivers of motor vehicles and are regulated by the National Transport and Safety Authority.104 Scootering is not expressly mentioned in the regulations, but may fall within the definition of motor cycles as defined under section 2 of the Traffic Act as follows: ‘motorcycle’ means a motor vehicle with less than four wheels the weight of which unladen does not exceed eight hundred weights. This therefore means that scooters would fall under the same regulation as motorcycles. In MWM Suing as the administratrix of the Estate of the Late HGW v David Irungu Gichanga, a motor cyclist knocked down a pedestrian, a child aged 10 years, and who later died as a result of the injuries sustained from the accident. The magistrates’ court found that negligence had not been proved against the motorcyclist and therefore dismissed the case. The accident happened within a market area, and the facts as to how the accident happened- whether the child ran onto the road or whether the motorbike veered off the road were disputed and hence it was not clear how the accident happened. On appeal, the court found that the question of whether the child was partly to blame for the accident should have been determined while taking into account his age and the fact that he was a child of tender years. Further, the appellate court found that the motorcyclist had a duty to be conscious while using a road within a market with a lot of human traffic, and the lack of barriers to separate one side of the road from the other, meaning that pedestrians would be likely to cross from one side to the other in the normal course of their business. The appellate court therefore found the motorcyclists largely responsible for the accident, to the level of 90%, while the deceased was apportioned 10% of the liability. Damages of Kshs. 600,000 awarded by the lower court were upheld.

With regard to cyclists, there are no specific regulations for bicycles and generally, both pedestrians and cyclists will use sidewalks and pavements, because there are no designated lanes for cyclists to use, and this may therefore make it difficult for pedestrians to bring cases against cyclists for cases of negligence where an accident involving a pedestrian and a cyclist occurs.

Notably, many roads do not have pavements or sidewalks, or if they are there, they are poorly maintained, thus forcing pedestrians and cyclists to use the road.105 Hence a high number of traffic accidents involving pedestrians occurs due to lack of pavements and sidewalks.106 This would therefore explain the lack of cases based on an action for negligence, involving a pedestrian and a cyclist.

C5.1.2 Remedies, Sanctions or Other Outcomes

This will be the same as in C1.

C5.1.3 Enforcement

This will be the same as in C1.

C6 Other issues relating to the design, management or maintenance of streets

C6.1 Actions for the tort of negligence

C6.1.1 Description and Examples

This will generally be the same as in C1 and C2.

C6.1.2 Remedies, Sanctions or Other Outcomes

This will be the same as in C1.

C6.1.3 Enforcement

This will be the same as in C1.

Many cases relating to injury occurring in public spaces due to negligence relate to road traffic accidents. While in principle one can bring a suit for tortious liability if they suffer harm due to open manholes, unsafe design of streets or inaccessible public spaces, there are few cases of this nature that have actually been brought through the courts. As already stated, few suits have been filed on tortious liability relating to suffered harm due to unsafe design of streets or inaccessible public spaces. This could be due to the fact that cases relating to open manholes, unsafe design of streets or inaccessible public spaces will in most cases have to be brought against a government agency or public body. As noted in B1, it is generally difficult to enforce court orders against a government agency. Further, unlike cases relating to constitutional actions, cases relating to torts will attract court fees, hence bringing such cases before the courts can be financially prohibitive, and on the other hand, enforcement of court orders against the government remains problematic. For cases relating to road traffic accidents, particularly where motor vehicles are involved, the owners of motor vehicles can be sued and court order issued against them can also be enforced with greater ease. Persons with disabilities and Kenyans generally are more likely to use alternative judicial or quasi-judicial redress mechanisms.

D. Laws that can be used by public bodies to challenge problems for pedestrians generally

D1 Failing to safeguard pedestrians from holes, roadworks, traffic flow and other hazards

There is no specific law in this category in Kenya.

D2 Inaccessible or unsafe design of streets or street features

There is no specific law under this category that is applicable in Kenya.

D3 Obstructing roads or pavements

D3.1 Criminal action under the Traffic Act

D3.1.1 Description and Examples

Section 45A of the Traffic Act makes it an offence to drive on pavements or pedestrian walkways, in order to avoid traffic. The act of driving on pavements or pedestrian walk ways amounts to obstruction of those spaces for use by pedestrians. It should be noted that obstruction is generally treated as a minor traffic offence, and unless it results in serious or fatal accidents, it is unlikely that the offender will be charged in court.107 In instances where obstruction results in fatal accidents, it is likely to involve motor vehicles rather than pedestrians, but generally the principles that apply in cases where death or serious injury of motorists occurs would also apply in where death or serious injury of a pedestrian occurs.

D3.1.2 Remedies, Sanctions or Other Outcomes

Section 45A(2) of the Traffic Act provides that: ‘a person who contravenes subsection (1) commits an offence and shall be liable- (a) for a first conviction, to imprisonment for a term not exceeding three months, or to a fine not exceeding thirty thousand shillings, and (b) for a second or subsequent conviction to imprisonment for a term not exceeding six months.’ The general criminal sanctions of jail terms or fines apply where one is convicted for offences under the Traffic Act. Section 66B of the Traffic Act empowers courts to exercise the power of cancelling drivers’ licenses. Section 67(1) of the Traffic Act provides as follows: ‘Any person who contravenes or fails to comply with any of the provisions of this Part shall be guilty of an offence and liable, where no penalty is specifically provided, on first conviction to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months, and on each subsequent conviction to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding six months or to both.’

D3.1.3 Enforcement

This will be done in line with the provisions of criminal law, where one is convicted of an offence. Generally, it means that one will be imprisoned or fined, and both the police and prisons department will be relied upon to ensure that the sentence imposed by the courts is implemented.

D4 Driving, cycling and other travelling on roads which might endanger pedestrians

D4.1 Law 1 Criminal actions under the Traffic Act

D4.1.1 Description and Examples

Where one causes harm through dangerous driving, they may face criminal charges under the Traffic Act. Part V of the Act creates specific offences with regard to driving, and they include:

  1. driving on pavements and pedestrian walkways (which is discussed in D3 above).


  2. causing death by driving or obstruction


  3. reckless driving


  4. driving without due care and attention


  5. speeding


  6. failure to obey signs and signals.


Where a pedestrian suffers harm due to one’s driving, but does not die, the charge would be reckless driving and driving without due care and attention, whereas where death occurs, then the charge would be causing death by driving or obstruction. In the case of Republic v Dilesh Sonchand Bid [2014] eKLR, the defendant was charged with “the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act. The particulars of the offence were that on the said date and on the said road, he drove a motor vehicle registration No. KBP 875U Toyota Land cruiser at such a speed or in such a manner that was dangerous to the public and having regard to all the circumstances of the case including the nature, condition and use of the road at the time that he caused the death of Yvonne Chemetich Langat.  He was further charged with two counts of careless driving contrary to Section 49(1) of the Traffic Act. The particulars of the offence were that on the same day and in the same place, driving the same motor vehicle, the Respondent without due care and attention, hit two pedestrians, namely Galgalo Halauhe Waqo and Mary Rita Kendi thereby causing them to sustain serious injuries. Although the Respondent initially pleaded not guilty to the charge, in a subsequent hearing date, he pleaded guilty to all the three counts. In respect of the first count, he was sentenced to pay a fine of Kshs.100,000/-, and in respect of the second and third counts he was sentenced to pay a consolidated fine of Kshs.5,000/-. The State was aggrieved by the decision and invoked the court’s revisionary powers under Section 364 of the Criminal Procedure Code. The State’s view was that the sentence imposed by the trial court was manifestly lenient, and therefore illegal, and that the Respondent should have been sentenced to serve a custodial sentence, and further, have his driving licence revoked for a period of time. The State’s application for revision of the sentence was dismissed, with the court holding that the State was seeking revision of the sentence on the ground that the respondent caused the accident due to recklessness, but the court found that he was not reckless in causing the accident, but rather, as a result of momentary inattention and lack of judgment.

Thus what we see is that in making a determination as to the sentence, the court will consider the accused person’s state of mind when the accident occurred. If the court finds that the accident was as result of inattention and lack of judgment, it may impose a lenient sentence. But where the court finds that the accident was caused due to recklessness, then it may impose a stiff sentence, as in the case of Paul Thiga Ngamenya v Republic [2018] eKLR. In that case, the appellant ‘was charged in the Principal Magistrate’s Court at Kangundo in Criminal Case No. 4 of 2015 with two counts the offence of causing death by dangerous driving contrary to section 46 of the Traffic Act. Cap 403 Laws of Kenya. The particulars of the first count were that the appellant, on the 5th day of November, 2012 at about 2.30 pm along Mombasa-Nairobi road in Athi River District in Machakos County, being a driver of motor vehicle registration KBN 603K Toyota Hiace Matatu, he drove the said motor vehicle without due care and attention by overlapping and hitting a motor vehicle registration no. KAM 321P Mitsubishi FH which was parked off the road and caused the death of passenger namely Joseph Mutiso. The particulars of the second count were that the appellant, on the 5th day of November, 2012 at about 2.30 pm along Mombasa-Nairobi road in Athi River District in Machakos County, being a driver of motor vehicle registration KBN 603K Toyota Hiace Matatu, he drove the said motor vehicle without due care and attention by overlapping and hitting a motor vehicle registration no. KAM 321P Mitsubishi FH which was parked off the road and caused the death of passenger namely James Kiseli Musembi. After hearing the Learned Trial Magistrate found that the prosecution proved their case against the appellant in respect of both counts, proceeded to fine the appellant Kshs 200,000.00 on each count and in default the appellant was sentenced to serve one (1) year imprisonment with the sentences running consecutively. Further the appellant’s driving licence was to remain cancelled for a period of one year.’ The Court of Appeal upheld the decision of the trial court, only varying the imposition of the consecutive custodial sentence and instead held that the sentence should be served concurrently. In upholding the sentence of the trial court, The Court of Appeal also noted that ‘it is clear that the accident did not arise through momentary inattention or misjudgement but was a result of a selfish disregard for the safety of other road users or his passengers or with a degree of recklessness.’

D4.1.2 Remedies, Sanctions and Other Outcomes

Section 46 of the Traffic Act provides as follows: ‘*Any person who causes the death of another by driving a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public, or by leaving any vehicle on a road in such a position or manner or in such a condition as to be dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road, shall be guilty of an offence whether or not the requirements of section 50 have been satisfied as regards that offence and be liable to imprisonment for a term not exceeding ten years and the court shall exercise the power conferred by Part VIII of cancelling any driving licence or provisional driving licence held by the offender and declaring the offender disqualified for holding or obtaining a driving licence for a period of three years starting from the date of conviction or the end of any prison sentence imposed under this section, whichever is the later.*’

In Republic v Dilesh Sonchand Bid [2014] eKLR, the court did not provide for a custodial sentence as sought by the State, hence we see that section 46 of the Traffic Act allows for discretion on the part of judicial officers when sentencing a person convicted of causing death by driving.

With regard to reckless driving, section 47 of the Traffic Act provides as follows:

‘Any person who drives a motor vehicle on a road recklessly, or at speed, or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road and the amount of traffic which is at the time or which might reasonably expected to be on the road, is guilty of an offence and liable:

  1. for a first conviction, to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years; and
  2. for a second or subsequent conviction, to a fine not exceeding three hundred thousand shillings, or imprisonment for a term not exceeding one year, and the court shall exercise the power conferred by Part VIII of cancelling any driving licence or provisional driving licence held by the offender and declaring the offender disqualified for holding or obtaining a driving licence for a period of two years starting from the date of conviction or the end of any prison sentence imposed under this section, whichever is later.’

With regard to driving without due care and attention, section 49 of the Traffic Act provides as follows:

‘Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be guilty of an offence and liable:
for a first offence, to a term of imprisonment not exceeding one year or a fine not exceeding one hundred thousand shillings;
and for a second or subsequent offence, to a term of imprisonment not exceeding two years or to a fine not exceeding two hundred thousand shillings,
and the court may exercise the power conferred by Part VIII of suspending any driving licence or provisional driving licence held, by the offender disqualified from holding or obtaining a driving licence for a period of twelve months starting from the date of conviction or the end of any prison sentence imposed under this section, whichever is the later.’

With regard to failing to obey traffic signs and signals, section 52 of the Traffic Act provides as follows:
‘The driver of a vehicle shall at all times:

  1. obey any directions given, whether verbally or by signal, by a police officer in uniform, in the execution of his duty; and
  2. conform to the indications given by any traffic sign; and
  3. stop his vehicle on being so required by a police officer in uniform;
  4. and when any person in charge of any cattle raises his hand or in any manner gives a signal to stop, forthwith stop his vehicle and keep it stationary for as long as it is reasonably necessary.

Any person who contravenes or fails to comply with any of the provisions of this section shall be guilty of an offence and liable:

  1. for a first conviction, to a fine not exceeding fifty thousand shillings or a term of imprisonment not exceeding six months; and
  2. for a second or subsequent conviction, to a fine not exceeding seventy thousand shillings or a term of imprisonment not exceeding one year, and the court shall exercise the power conferred by Part VIII of cancelling any driving licence held by the offender and declaring the offender disqualified from holding or obtaining a driving license for a period of two years starting from the date of conviction.’

D4.1.3 Enforcement

This will be the same as in D3.

D4.2 Criminal action involving the use of roads by animals or vehicles drawn by animals

  1. Description and Examples

Section 90 of the Traffic Act provides for a series of offences relating to the use of roads by animals. These include:

  1. wilfully or negligently leading or driving any animal or vehicle on a footpath or in a road drain;


  2. playing any games to the annoyance, inconvenience or danger of persons using the road;


  3. wilfully obstructing the free passage of persons or vehicles passing along the road;


  4. driving or conducting any vehicle drawn by animals without having reins to guide the animals, unless a person leads the animals in such a manner as to have proper control over them;


  5. when driving a vehicle, sleeping whilst such vehicle is in motion;


  6. permitting any cattle to be at large without being under such efficient control as to prevent their damaging the road;


  7. outspanning any animals from a wagon or cart.


  8. Remedies


Section 94 of the Traffic Act provides that any person who contravenes or fails to comply with any of the provisions of this Part commits an offence and is liable on conviction, where no other penalty is specifically provided, to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding one year or to both.

D4.1.4 Enforcement

This will be the same as in D3.

D5 Cycling, scootering and other travelling on pavements which might endanger pedestrians

D5.1 Criminal action for dangerous driving involving motorbikes

D5.1.1 Description and Examples

As we saw in C5, Kenya has no specific regulations that apply to bicycle users, and generally they will be treated in the same manner as pedestrians. Scooters may fall under the broad definition of motorcycles provided for under section 2 of the Traffic Act, hence in principle, it is possible for the public prosecutor to charge scooter users with the offences of causing death by driving or obstruction, reckless driving, driving without due care and attention, speeding, and failure to obey signs and signals, under Part V of the Traffic Act.

D5.1.2 Remedies, Sanctions and Other Outcomes

This will be the same as in D3.

D5.1.3 Enforcement

This will be the same as in D3.

D6 Other issues relating to the design, management or maintenance of streets

D6.1 The Kenya Roads Act

D6.1.1 Description and Examples

Section 58 of the Kenya Roads Act provides for a number of offences relating to the works of various road authorities. It states as follows:

Any person who unlawfully – (a) does any act which obstructs or is likely to obstruct the working of any equipment or vehicle belonging to an Authority used in its operations and which act endangers or is likely to endanger the life of any person therein; or (b) damages or in any way interferes with any road or other property of an Authority in such a manner as to endanger the life of any person; or (c) does any act which obstructs or is likely to obstruct the operation of vehicles on any road or the use of any weighbridge, commits an offence and is liable on conviction to imprisonment for a term not exceeding two years, or to a fine not exceeding one hundred thousand shillings, or to both.

D6.1.2 Remedies, Sanctions and Other Outcomes

Section 58 provides for the following remedy: imprisonment for a term not exceeding two years, or to a fine not exceeding one hundred thousand shillings, or to both.

D6.1.3 Enforcement

This will be the same as in D3.

The practice in Kenya relating to minor traffic offences is that accused persons can just pay a fine directly to the police or even receive a warning from the police, without these matters having to go to court.108 Thus, while there are many instances where traffic offences occur, not all of them go before the courts. In particular, offences such as obstruction may not always go before the courts, especially where they involve public service vehicles, or where they involve cases of overlapping in order to avoid heavy traffic in cities such as Nairobi or Mombasa.109 In addition, the issue of police corruption, as discussed in section F of this report, is quite rife in relation to traffic offences, and often, police officers will take a bribe in order to disregard traffic offences.

Notably, section 93 of the Traffic Act also provides that:
‘The highway authority shall not be liable for any loss or damage which may be caused to any person or property through the condition of a road or the failure of a road to sustain the weight of a vehicle.
Nothing in this Act shall affect the right of the highway authority or of any person to recover compensation from the owner or driver of any vehicle for any loss, damage or injury which may be sustained by the highway authority or such person by the use of a vehicle.’

Further, section 2 of the Traffic Act provides that ‘highway authority’ means the Minister for the time being responsible for Public Roads or any other Authority or body to whom the Minister delegates powers subject to such terms and conditions as he may deem appropriate.

The provisions of this section should be read in light of the constitutional provisions that prohibit discrimination and which allow persons to bring actions for equality before the courts. Where a conflict may arise between the Constitution, and in particular Chapter 4 on the Bill of Rights and this section of the Traffic Act, the provisions of the Constitution will prevail. For example, Lawyer Abdullahi Ahmednassir was awarded Kshs. 750,311 as damages for a damaged windscreen of his Bentley Bentyaga.110 The case was brought against the Kenya National Highways Authority, and although this Authority is governed under the Kenya Roads Act and not the Traffic Act, the principles which the court applied may also apply to the Minister who is the highways authority under the Traffic Act. The main principle in that case is that the Kenya National Highways Authority owed the plaintiff as well as other road users a duty of care to put up road signs cautioning road users to be careful. That duty was breached, hence the plaintiff suffered harm when his windscreen was cracked due to the state of the road.

E Cross-cutting issues

E1 Key Topical Issues

First, as already explained at the beginning of the report, concerns remain about the accuracy of the prevalence of disability in the country, as established by the 2019 Kenya National Population and Housing Census which determined the prevalence of disability at 2.2 percent. The Washington Set of Short Questions were used for purposes of determining disability and the numbers of persons with disabilities in the country, a departure from past census whose focus was on counting the number of persons with specified impairments (such as blindness or deafness). The doubts on disability prevalence may undermine the case for resourcing what are perceived as causes for persons with disabilities (or indeed older persons) both at the national and county levels. It is of course the case that such resources should be earmarked in inclusive contexts which also take account of universal design, but far more pragmatic considerations tend to bear on how resources are allocated. While the government has not made specific allocation of resources contingent on the population of disabled people, inaccurate information on the prevalence of disability undermine the claims of disability advocates before key institutions like Parliament and indeed the public. Most recently, the Building Bridges Initiative, which is a political proposition entailing campaigning for review of the Constitution, has even proposed the diminution of the representation of Persons with disabilities in Parliament. The current such proposal entails the removal of the two Senate seats specifically reserved for persons with disabilities.111

Second, the overall continental policy and legal normative framework for the rights of persons with disabilities and the rights of older persons has developed rapidly in recent years, notably with the adoption of the two additional instruments to the African Charter, as described earlier in the report. A notable challenge however is the fact that most African States including Kenya have not become party to these instruments. Kenya has as well not become party to the African Road Safety Charter. This means that the specific normative standards established in these instruments may not be justiciable in Kenya to the extent they are not otherwise legislated for.

Third, perhaps the most pressing policy concern relates to the dearth of specificity on the interventions of planning, funding, design or redesign for ensuring barrier-free pedestrian access. The impetus for genuine substantive change remains fairly limited. Policy and law-makers continue to engage at the generic rather than specific levels. It is quite welcome therefore, as explained in the report, that stakeholders have started to undertake specific projects covering universal design and accessibility.

E2 Strengths and Good Practices

One quite evident good practice is that persons with disabilities more than ever before are also participating in initiatives seeking to make a difference in their lives. They file petitions with the National Assembly or their county assemblies addressing matters such as national or county planning or budgeting, and they even litigate when they feel that their interests have not been realised. They have for example sought judicial interventions to enable better access to buildings, as already described in the report.

Related to the above, and as the report has highlighted, persons with disabilities alongside other Kenyans have a broad range of judicial and quasi-judicial mechanisms which they may use when they deem that their human rights have been violated. Instances of litigation on issues specific to the rights of persons with disabilities and older persons have been highlighted in the report. Courts have recognised instances where the physical environment has been inaccessible. It is however the case that judicial and statutory institutions have been conservative in providing remedies to persons with disabilities, giving errant institutions the benefit of the doubt or a rap on the knuckles in the expectation that they would gradually be more accommodative of the needs of persons with disabilities.

Third, the government actually does listen. It is indeed ironic that the national census debacle may have been instigated by advocacy undertaken by persons with disabilities when they successfully persuaded the government to use the Washington Group Short Set of Questions as the format for collecting data on persons with disabilities. This approach however was either poorly executed or perhaps it was not properly conceptualised or calibrated for purposes of collecting disability data in a developing country.112 A new consensus is being negotiated with the Government under which a national disability survey will be undertaken to update their data. This option has however not been firmed up.

E3 Weaknesses and Concerns

As already reported, Kenyans cannot file individual claims before treaty bodies such as the UN Committee on the Rights of Persons with Disabilities. They can however, subject to exhaustion of local remedies, file claims before the African Commission on Human and Peoples’ Rights.

E4 Recommendations

The recommendations made in this report do not include assessments made from information which could have been drawn from primary sources such as interviews with relevant actors.

Ensuring barrier-free access for persons with disabilities, older persons and others in Kenya remains fraught with many policy, legislative, regulatory, institutional and implementational challenges.

First and foremost, end-beneficiaries of barrier-free access remain relatively unaware of the measures which relevant State agencies have committed to put in place or actually implemented in respect of barrier-free access. it is important that capacity-building and awareness-raising on the value of barrier-free access and on relevant measures be instituted both by State agencies as well as stakeholder organisations including disabled peoples’ organisations.

Stakeholder organisations are gradually focusing on matters of accessibility, and this should be encouraged and facilitated. In the last two years alone, at least three initiatives including this project have or are undertaking studies on accessibility for persons with disabilities.

Constitutional provisions for anchoring barrier-free access as well as for facilitating redress are in place. These provisions should be supported by a more comprehensive legislative framework. In particular, Kenya requires substantive comprehensive equality legislation which enables Article 27 of the Constitution. Such law will detail grounds, avenues and remedies of discrimination. Over and above legislation, the country also requires an overarching equality policy which, among others, clarifies the institutional framework for addressing equality. In particular, relationships between and amongst the country’s diverse equality institutions should be clarified.

A particular legislative gap relates to legislation on matters of disability. despite at least 25 drafts prepared at various points by different State agencies, the Persons with Disabilities Act of 2003 has still not been replaced with a law that takes account of the dramatic progress on matters of disability heralded by Kenya’s ratification of the CRPD in 2008 and the promulgation of the 2010 Constitution. It is essential that a version of the Persons with Disabilities Bill approved by the Cabinet in 2018, should be enacted into law on a priority basis. That law would provide a veritable basis for barrier-free access since it is more responsive to the accessibility requirements of persons with disabilities. As well, it seeks to resolve the difficulties which have undermined enforcement of adjustment orders.

Policy and law-making on barrier-free access has not been matched with effective implementation. It is essential that the State matches its policy statements and commitments with actual actions. Commitments on barrier-free access made to the Committee on the Rights of Persons with Disabilities as well as in other internationally-oversighted processes such as the Sustainable Development Goals and the Global Disability Summit should be implemented. It is essential that regular, say annual, reports be issued on progress.

Persons with disabilities remain ill-equipped to use judicial processes to seek redress. While the Constitution has established that court fees should be nominal, persons with disabilities still find it relatively difficult to leverage lawyers and researchers to litigate their cases. It is imperative for stakeholders to create more effective partnerships with mainstream human rights organisations which may assist with relevant litigation.

Devolved governments hold great potential for supporting barrier-free access. County governments however continue to operate under the shadow of centralised government whose functions were devolved only a decade ago, and overreach from the National Government has still not been stemmed in practice. It will take a while longer for county governments to establish their own distinct responses to ensure barrier-free access for their residents.

F Other Important Legal Issues

F1 Corruption and anti-corruption

Corruption is a key issue that affects delivery of goods and services in Kenya. In the context of inclusive public spaces, corruption has affected the development of infrastructure and it limits the extent to which Kenya is able to meet constitutional, International and Regional human rights obligations. 113 Corruption in Kenya is characterised as being endemic and systemic.114 There are various forms of corruption, such as petty and bureaucratic corruption that may affect the extent to which individuals may access goods and services especially from public institutions and offices; and grand corruption which may affect the extent to which the state is able to deliver public goods and ensure equitable allocation of resources.115 Most recently, grand corruption scandals have affected large infrastructure development projects, where multi-purpose dams were to be constructed and this limited the delivery of essential services to affected communities.116 The dams projects have never taken off, and it is alleged that about Kshs. 21 billion has been lost in the controversial project.117 Political corruption in another form of corruption, which affects political systems, limiting the extent to which they can allow for proper representation of the needs and concerns of the people. Political corruption has been an impediment to anti-corruption, operating in a manner to cushion political allies who may be implicated in corruption scandals and thwarting efforts to take action against those engaging especially in corruption.118 Political corruption also benefits financially from other forms of corruption, thus providing impetus for political corruption to cushion those engaging in bureaucratic and grand corruption.119

The country has in place an extensive legal framework to address corruption.120 Generally, criminal sanctions may be taken against persons found to be engaging in corruption. The Ethics and Anti-Corruption Commission which was established in 2011 is mandated to investigate corruption, and it then recommends to the Director of Public Prosecutions to charge those who are implicated in corruption. Most importantly, those convicted of corruption and economic crimes may be ordered to make reparations, by paying back the money that they stole.121 Anti-corruption is therefore a means through which relief may be obtained by those who are affected by corruption scandals, however, criminal prosecutions generally take a long time, and further it may be difficult to recover most of the funds lost through corruption, as in the case of John Waluke and Grace Wakhungu, who continue to struggle to pay the fines imposed on them, thus the more likely alternative is that they will serve a jail term.122

G Conclusion

Kenya has some legal provisions aimed at ensuring inclusive public spaces. However, this legal framework is not overly developed and there are some gaps within it that would prevent the full enjoyment of human rights for persons with disabilities as well as older persons. Aside from the constitutional and statutory law provisions aimed at promoting inclusive public spaces, we have also seen that the law of Torts plays a significant role in providing remedies for those who suffer injury as a result of uninclusive public spaces. However, the jurisprudence under the law of Torts is also not significantly developed as to promote legal principles that can ensure public spaces are inclusive. Thus, there is room for further development of the law so that it effectively contributes towards inclusive public spaces.

R References

R1 Bibliography

African Union Commission, Department of Social Affairs, Continental Plan of Action for the African Decade of Persons with Disabilities 2010-2019.
African union, African Road Safety Action Plan 2011-2020.
African Union, Agenda 2063, The Africa We Want, Popular Version.
African Union, Report on the Implementation of Continental Plan of Action on the African Decade of Persons with Disabilities (2010-2019), 3rd Session of the Specialised Technical Committee on Social Development Labour and Employment, 1-5 April 2019, Addis Ababa, Ethiopia.
Asige, C and Kavai, K ‘White Paper on Universal Design in Nairobi City’, the Open Institute, September 2019.
Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Kenya adopted at the Committee’s 14th Session, 17 August-4 September 2015.
Committee on the Rights of Persons with Disabilities, General Comment No 2 (2014): Article 9: Accessibility.
Concluding Observations and Recommendations on the 8th to 11th Periodic Report of the Republic of Kenya, adopted at the 19th Extraordinary Session of the African Commission on Human and Peoples’ Rights, 16-25 February 2016.
Human Rights Council, 29th Session, Report on the Working Group of the Universal Periodic Review, Kenya.
Human Rights Council, 44th Session, 15 June-3 July 2020, 29th Session, Report of the Working Group on the Universal Periodic Review, Kenya.
Kahura, D ‘Lies, Dam Lies and Intrigues: The Arror and Kimwarer Dams Saga (The Elephant 2019).
Kenya’s Initial Report Submitted under Article 35 (1) of the United Nations Convention on the Rights of Persons with Disabilities, 31 August 2011.
Kinuthia, K (17 October 2019) ‘Pedestrians losing lives on city roads due to lack of sidewalks’ Business Daily.
Martini, M Kenya: Overview of Corruption and Anti-Corruption, U4 Expert Answer. (2014).
Mboga, J (7 August 2020) Court Awards Lawyer Ahmednassir Abdullahi Shs 750,000 for Damaged Windscreen, The Standard.
McBride, N and Bagshaw, R Tort Law (Pearson Education Limited 2001).
Ministry of East African Community, Labour and Social Protection, National Plan of Action on Implementation of Recommendations Made by the Committee on the Rights of Persons with Disabilities in Relation to the Initial Report of the Republic of Kenya, September 2015-June 2022, May 2016.
Ministry of Labour, Social Security and Services, National Policy on Older Persons and Ageing, revised 2014.
Ministry of Transport, Integrated National Transport Policy, 2009.
Mombasa County Integrated Plan 2018-2022.
Muruiki, B ‘Sirisia MP John Waluke Sentenced to 10 Years in Jail or Pay Kshs. 727M Fine’ (Citizen Digital, 25 June 2020).
Nairobi City County Non Motorised Transport Policy, 2015.
Ndii, D Highway Robbery: Budgeted Corruption as State Capture (Nairobi, Africa Centre for Open Governance 2020).
Nthenge, M ‘Promotion, Protection and Monitoring: Implementing Article 33 (2) of the Convention on the Rights of Persons with Disabilities in Kenya’ in East African Law Journal, Special Issue on Disability Rights 2016/2017 (Nairobi, University of Nairobi 2017).
Apiko, O ‘Understanding the East African Court of Justice: The Hard Road to Independent Institutions and Human Rights Jurisdiction’ (ECDMP (2017).
Ouma, S A Commentary on the Civil Procedure Act CAP 21 (LawAfrica 2010).
Republic of Kenya, Draft Street Design Manual for Urban Areas in Kenya (Nairobi, Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works, April 2019.
Republic of Kenya, Third Medium Term Plan https://vision2030.go.ke/publication/third-medium-term-plan-2018-2022/
Status of Disability in Kenya: Statistics from the 2019 Census.

R2 Table of Legislation

Constitution of Kenya (2010).
Constitution of Kenya (Amendment) Bill, 2020 (Nairobi, 25 November 2020).
Constitutive Act of the African Union, 2000.
Convention on the Rights of Persons with Disabilities.
County Governments Act (No. 17 of 2012).
East African Community Persons with Disabilities Bill, 2015.
East African Community, Policy on Disability, March 2012.
Judicature Act (Cap 8).
Kenya gazette Supplement No. 105, 10 December, 1963 (Legislative Supplement No. .69) Legal Notice No. 718 Statutory Instruments, 1963 No. 1968 the Kenya Independence Order in Council.
Kenya National Commission on Human Rights Act (No 14 of 2011).
Kenya Roads Act (No 2 of 2007).
Kenya Roads Board Act (No 7 of 1999).
Mombasa County Roads Act (2016).
Mombasa Persons with Disabilities Bill.
National Construction Authority Act (No. 41 of 2011).
National Gender and Equality Commission Act (No 15 of 2011).
National Transport and Safety Authority Act (No 33 of 2012).
National Transport and Safety Authority (Operation of Motorcycles) Regulations, 2016.
Persons with Disabilities (Access to Employment, Services and Facilities) Regulations (2009).
Persons with Disabilities Act (No 14 of 2003).
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa 2018.
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, 2016.
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003.
Public Benefits Act (No 18 of 2013).
Treaty for Establishment of the East African Community, 1999.
Treaty Making and Ratification Act (No 45 of 2012).

R3 Table of Cases

Duncan Otieno Waga v Attorney General (2014) eKLR.
Francis Muiruri Mwangi v John Ngugi (2015) eKLR.
Independent Medico-Legal Unit v Attorney General of the Republic of Kenya, East African Court of Justice (2011A).
Joseph Muturi Koimburi V Mercy Wahaki Mugo (2006) eKLR.
Kenya Airports Authority v Mitu-Bell Welfare Society and 2 Others (2016) eKLR.
Kenya Society for the Mentally Handicapped v Attorney General and 7 Others (2012) eKLR.
Lily Becher Barclay V Kirima Kamau , Nairobi HCCC 2037 of 1988.
Mary Njeri Murigi v Peter Macharia & another (2016) eKLR.
Paul Pkiach Anupa & Another v Attorney General & Another (2012) eKLR.
Purohit and Moore v Gambia, ACHPR Communication 241/01.
Republic v Dilesh Sonchand Bid [2014] eKLR.
Republic v Minister for Nairobi Metropolitan Development & 2 others Ex parte Timwood Products Limited & 13 others (2014) eKLR
Republic v Nairobi City County Government & 6 others Ex Parte Mike Sonko Mbuvi (2017) eKLR.
Samuel Mukira Muhochi v the AG of Uganda, East African Court, Ref No 5 of 2011
Wilson Musyoka v Machakos County Assembly (2019) eKLR.

Footnotes

  1. <https://www.knbs.or.ke/?p=5621\> accessed 17 April 2020. ↩︎

  2. Constitution of Kenya (2010) <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=Const2010\#KE/CON/Const2010/chap\_1\> accessed 17 April 2020. ↩︎

  3. Kenya gazette Supplement No. 105, 10 December, 1963 (Legislative Supplement No. .69) Legal Notice No. 718 Statutory Instruments, 1963 No. 1968 the Kenya Independence Order in Council <http://kenyalaw.org/kl/fileadmin/pdfdownloads/1963\_Constitution.pdf\> accessed 16 April 2020. ↩︎

  4. Kenya Airports Authority and Mitu-Bell Welfare Society, Civil Appeal No 218 of 2014, para 116 <http://kenyalaw.org/caselaw/cases/view/123600/\> accessed 6 July 2020. ↩︎

  5. Treaty Making and Ratification Act (No 45 of 2012) <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 45 of 2012\> accessed 20 April 2020. ↩︎

  6. Judicature Act (Cap 8) < http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP. 8\> accessed 17 April 2020. ↩︎

  7. Convention on the Rights of Persons with Disabilities, adopted by the 61st General Assembly of the United Nations, A/RES/61/106 <https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html\> accessed 20 April 2020. ↩︎

  8. Human Rights Council, 44th Session, 15 June-3 July 2020, 29th Session, Agenda Item 6, Report of the Working Group on the Universal Periodic Review, Kenya, para 144 <https://undocs.org/A/HRC/44/9\> accessed 21 August 2020. ↩︎

  9. Committee on the Rights of Persons with Disabilities, General Comment No 2 (2014): Article 9: Accessibility, para 15 <https://www.ohchr.org/en/hrbodies/crpd/pages/gc.aspx\> accessed 20 April 2020. ↩︎

  10. Kenya’s Initial Report Submitted under Article 35 (1) of the United Nations Convention on the Rights of Persons with Disabilities, 31 August 2011 <https://www.ohchr.org/en/hrbodies/crpd/pages/spreports.aspx\> accessed 13 November 2020. ↩︎

  11. Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Kenya adopted at the Committee’s 14th Session, 17 August-4 September 2015, para 17 <https://digitallibrary.un.org/record/811095?ln=en\> accessed 13 November 2020. ↩︎

  12. Ibid, para 18. ↩︎

  13. Ministry of East African Community, Labour and Social Protection, National Plan of Action on Implementation of Recommendations Made by the Committee on the Rights of Persons with Disabilities in Relation to the Initial Report of the Republic of Kenya, September 2015-June 2022, May 2016 <https://laboursp.go.ke/wp-content/uploads/2018/05/National-Action-Plan-FINAL-draft-from-printer.pdf\> accessed 6 July 2020. ↩︎

  14. <https://sustainabledevelopment.un.org/memberstates/kenya\> accessed 7 July 2020. ↩︎

  15. Republic of Kenya, Third Medium Term Plan <https://vision2030.go.ke/publication/third-medium-term-plan-2018-2022/\> accessed 10 July 2020. ↩︎

  16. <https://sustainabledevelopment.un.org/memberstates/kenya\> accessed 7 July 2020. ↩︎

  17. 2019 SDGs Progress Report (National Treasury and Planning: June 2019). ↩︎

  18. Res 70/1, ‘Transforming our World: The 2030 Agenda for Sustainable Development’, adopted by the United Nations General Assembly on 25 September 2015, Para 27 <https://www.unfpa.org/resources/transforming-our-world-2030-agenda-sustainable-development\> accessed 22 April 2020. ↩︎

  19. Ibid, Goal 11.2. ↩︎

  20. 2019 SDGs Progress Report (supra) 78. ↩︎

  21. Ibid, 12. ↩︎

  22. African Union, Agenda 2063, The Africa We Want, Popular Version, 2015 para 25. ↩︎

  23. Aspiration 6 focuses on the contributions of women, youth and children. Ibid, paras 47-58. ↩︎

  24. African union, African Road Safety Action Plan 2011-2020, <https://www.uneca.org/sites/default/files/PageAttachments/decade\_of\_action\_for\_road\_safety\_2011-2020\_en.doc.pdf\> accessed 8 July 2020. ↩︎

  25. Ibid. ↩︎

  26. African Union Commission, Department of Social Affairs, Continental Plan of Action for the African Decade of Persons with Disabilities 2010-2019, 8 <https://au.int/sites/default/files/pages/32900-file-cpoa\_handbook.\_audp.english\_-\_copy.pdf\> accessed 8 July 2020. ↩︎

  27. Ibid. ↩︎

  28. Ibid. ↩︎

  29. Ibid, 20. ↩︎

  30. Ibid. ↩︎

  31. Africa Union Disability Strategic Policy Framework, Third session of the Specialised Technical Committee on Social Development, Labour and Employment, Addis Ababa, Ethiopia, 1-5 April 2019. ↩︎

  32. Ibid. ↩︎

  33. Decision of the African Union Executive Council (EX.CL/Dec.750 (XXII), of January 2013 <https://au.int/sites/default/files/decisions/9657-ex\_cl\_dec\_726-766\_xxii\_e.pdf\> accessed 9 July 2020. ↩︎

  34. ‘Evaluation of the Plan of Action on the African Decade of Persons with Disabilities (1999-2009)’ (African Union, November 2010). ↩︎

  35. Report on the Implementation of Continental Plan of Action on the African Decade of Persons with Disabilities (2010-2019), 3rd Session of the Specialised Technical Committee on Social Development Labour and Employment, 1-5 April 2019, Addis Ababa, Ethiopia. ↩︎

  36. African Charter on Human and Peoples’ Rights, adopted by the OAU Heads of State and Government in 1981; came into force in 1987 <https://www.achpr.org/legalinstruments/detail?id=49\#:\~:text=The African Charter on Human,freedoms in the African continent.\> accessed 10 July 2020. ↩︎

  37. Ibid, Art 2. ↩︎

  38. Ibid, Art 18(4). ↩︎

  39. Concluding Observations and Recommendations on the 8th to 11th Periodic Report of the Republic of Kenya, adopted at the 19th Extraordinary Session of the African Commission on Human and Peoples’ Rights, 16-25 February 2016, para 20 <https://www.achpr.org/states/statereport?id=99\> accessed 10 July 2020. ↩︎

  40. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, Art 15 <https://au.int/sites/default/files/treaties/36440-treaty-protocol\_to\_the\_achpr\_on\_the\_rights\_of\_persons\_with\_disabilities\_in\_africa\_e.pdf\> accessed 10 July 2020. ↩︎

  41. <https://www.gov.uk/government/publications/national-governments-global-disability-summit-commitments/government-of-kenya\> accessed 16 November 2020. ↩︎

  42. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, adopted by the African Union in 2016 <https://au.int/sites/default/files/pages/32900-file-protocol\_on\_the\_rights\_of\_older\_persons\_e.pdf\> accessed 22 August 2020. ↩︎

  43. Ibid, Art 18. ↩︎

  44. Older Persons Protocol, Art 8; Disability Rights Protocol, Art 30. ↩︎

  45. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the African Union in 2003, came into force in 2005 <https://au.int/sites/default/files/treaties/37077-treaty-charter\_on\_rights\_of\_women\_in\_africa.pdf\> accessed 22 August 2020. ↩︎

  46. Constitutive Act of the African Union, adopted by the African Union Heads of State and Government in 2000 <https://au.int/en/constitutive-act\#:\~:text=The AU Constitutive Act solemnises,of Africa and African States.\> accessed 10 July 2020. ↩︎

  47. African Road Safety Charter, adopted by the AU Heads of State and Government on 30 January 2016 <https://au.int/en/treaties/road-safety-charter\> accessed 10 July 2020. ↩︎

  48. <https://projectsportal.afdb.org/dataportal/VProject/show/P-KE-IAE-002\> accessed 25 November 2020. ↩︎

  49. East African Community, Policy on Disability, March 2012 <http://meac.go.ke/wp-content/uploads/2017/03/adopted\_eac\_disability\_policy\_march\_2012.pdf\> accessed 24 April 2020 ↩︎

  50. Treaty for Establishment of the East African Community, signed on 30 November 1999, entered into force on 7 July 2000 <https://www.eacj.org/?page\_id=33\> accessed 10 July 2020. ↩︎

  51. This was determined in Samuel Mukira Muhochi v the AG of Uganda, East African Court, Ref No 5 of 2011 <https://www.eacj.org//wp-content/uploads/2013/09/FI\_Uganda\_v\_Muhochi.pdf\> accessed 22 August 2020. ↩︎

  52. For example see East African Community Persons with Disabilities Bill, 2015, <http://www.eala.org/documents/view/the-eac-persons-with-disability-bill2015\> accessed 10 July 2020. ↩︎

  53. <https://www.eac.int/press-releases/1583-community-s-financial-status-worrying-assembly-states,-calls-on-council-of-ministers-to-fasttrack-remittances-to-remedy-situation\> accessed 25 November 2020. ↩︎

  54. <https://www.eac.int/infrastructure/road-transport-sub-sector\> accessed 25 November 2020. ↩︎

  55. Human Rights Council, 29th Session, Report on the Working Group of the Universal Periodic Review, Kenya, para 142.41 <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/064/59/PDF/G1506459.pdf?OpenElement\> accessed 11 July 2020. ↩︎

  56. National Gender and Equality Commission Act (No 15 of 2011) <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 15 of 2011\> accessed 11 July 2020. ↩︎

  57. Kenya National Commission on Human Rights Act (No 14 of 2011) < http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 14 of 2011\> accessed 11 July 2020. ↩︎

  58. Mirriam Nthenge, ‘Promotion, Protection and Monitoring: Implementing Article 33 (2) of the Convention on the Rights of Persons with Disabilities in Kenya’ in East African Law Journal, Special Issue on Disability Rights 2016/2017 (Nairobi, University of Nairobi 2017) 56. ↩︎

  59. Committee on the Rights of Persons with Disabilities, Concluding Observations to Kenya (supra) para 59. ↩︎

  60. Ibid, para 60. ↩︎

  61. Persons with Disabilities Act (No 14 of 2003) <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 14 of 2003\> accessed 10 July 2020. ↩︎

  62. <http://ncpwd.go.ke/\> accessed 6 July 2020. ↩︎

  63. Persons with Disabilities (Access to Employment, Services and Facilities) Regulations (2009), Regulation 14. ↩︎

  64. Ministry of Labour, Social Security and Services, National Policy on Older Persons and Ageing, revised 2014 <http://www.partners-popdev.org/ageing/docs/National\_Policy\_on\_Older\_Persons\_and\_Ageing\_Kenya.pdf\> accessed 24 August 2020. ↩︎

  65. Kenya Roads Act (No 2 of 2007) <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 2 of 2007\> accessed 22 June 2020. ↩︎

  66. Kenya Roads Board Act (No 7 of 1999) http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 7 of 1999 accessed 11 September 2020. ↩︎

  67. National Construction Authority Act (No. 41 of 2011) <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 41 of 2011\> accessed 11 September 2020. ↩︎

  68. National Transport and Safety Authority Act (No 33 of 2012) <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 33 of 2012\> accessed 22 June 2020. ↩︎

  69. <http://www.parliament.go.ke/the-national-assembly/committees\> accessed 29 June 2020. ↩︎

  70. Ministry of Transport, Integrated National Transport Policy, 2009 <> accessed 24 August 2020. ↩︎

  71. Draft Street Design Manual for Urban Areas in Kenya, Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works, April 2019 (on file with authors). ↩︎

  72. Ibid. ↩︎

  73. Wilson Musyoka v Machakos County Assembly, Petition No. 16 of 2018, High Court of Kenya at Machakos <http://kenyalaw.org/caselaw/cases/view/167218\> accessed 25 November 2020. ↩︎

  74. Public Benefits Act (No 18 of 2013) <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 18 of 2013\> accessed 11 September 2020. ↩︎

  75. https://www.youtube.com/watch?v=GFPqkUQKAow\&feature=youtu.be accessed 10 September 2020. ↩︎

  76. < https://www.change.org/p/national-transport-and-safety-authority-ntsa-petition-on-the-recognition-of-the-white-cane\> accessed 10 September 2020. ↩︎

  77. County Governments Act (No. 17 of 2012) <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No. 17 of 2012\> accessed 30 July 2020. ↩︎

  78. < https://kenyanwallstreet.com/nairobi-county-functions-transferred-to-the-national-government/\> accessed 11 July 2020. ↩︎

  79. <http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2018/CountyPlanning\_Roads\_PavementsandParkingBaysBill\_2018.pdf\> accessed 29 June 2020. ↩︎

  80. Crystal Asige and Kevin Kavai, ‘White Paper on Universal Design in Nairobi City’, the Open Institute, September 2019 <https://ability.or.ke/wp-content/uploads/2020/01/Ability-Programme-Report\_-Sept-2019.pdf\> accessed 10 September 2020. ↩︎

  81. Nairobi City County Non Motorised Transport Policy, 2015 <https://www.kara.or.ke/Nairobi City County Non Motorized Transport Policy.pdf\> accessed 30 July 2020. ↩︎

  82. Mombasa Persons with Disabilities Bill <http://www.mombasaassembly.go.ke/wp-content/uploads/2017/03/THE-MOMBASA-COUNTY-PERSONS-WITH-DISABILITIES-BILL-2017.pdf\> accessed 18 August 2020. ↩︎

  83. Mombasa County Roads Act (2016) <http://www.mombasaassembly.go.ke/wp-content/uploads/2017/06/The-Mombasa-County-Roads-Act-2016.pdf\>accessed 18 August 2020. ↩︎

  84. Mombasa County Integrated Plan 2018-2022, 4.5.9 <http://www.mombasa.go.ke/wp-content/uploads/2018/11/MSA-FINAL-CIDP-2018-22.pdf\> accessed 18 August 2020. ↩︎

  85. [2012] eKLR ↩︎

  86. [2014] eKLR ↩︎

  87. [2017] eKLR <http://kenyalaw.org/caselaw/cases/view/131179\> ↩︎

  88. [2014] eKLR. ↩︎

  89. Steve Ouma, (2010) A Commentary on the Civil Procedure Act CAP 21, LawAfrica. ↩︎

  90. Cap 40 Laws of Kenya ↩︎

  91. [2012] eKLR ↩︎

  92. Philomena Apiko (2017) Understanding the East African Court of Justice: The Hard Road to Independent Institutions and Human Rights Jurisdiction, ECDMP. Available at https://ecdpm.org/wp-content/uploads/EACJ-Background-Paper-PEDRO-Political-Economy-Dynamics-Regional-Organisations-Africa-ECDPM-2017.pdf. ↩︎

  93. East African Court of Justice (2011a). ↩︎

  94. Purohit and Moore v Gambia, ACHPR Communication 241/01 < https://www.achpr.org/sessions/descions?id=144\> accessed 25 November 2020. ↩︎

  95. Nicholas McBride and Roderick Bagshaw (2001) Tort Law, Pearson Education Limited. ↩︎

  96. [2014] eKLR ↩︎

  97. [2015] eKLR ↩︎

  98. [2014] eKLR ↩︎

  99. [2014] eKLR ↩︎

  100. Nairobi Hccc.No.2037 Of 1988 Decided on 5th July 1993 ↩︎

  101. [2016] eKLR ↩︎

  102. [2006] eKLR ↩︎

  103. [2015] eKLR ↩︎

  104. The National Transport and Safety Authority (Operation of Motorcycles) Regulations, 2016. Available at https://lsk.or.ke/Downloads/NTSA – Judith Opili.pdf ↩︎

  105. Keziah Kinuthia (17 October 2019) “Pedestrians losing lives on city roads due to lack of sidewalks*” Business Daily*, https://www.businessdailyafrica.com/bd/data-hub/pedestrians-losing-lives-on-city-roads-due-to-lack-of-sidewalks-2268060 ↩︎

  106. https://www.businessdailyafrica.com/bd/data-hub/pedestrians-losing-lives-on-city-roads-due-to-lack-of-sidewalks-2268060 ↩︎

  107. Lawyer Wangu, What You Need to Know About Minor Traffic Offences in Kenya. Available at https://www.lawyerwangu.com/resource-library/what-you-need-to-know-about-minor-traffic-offences-in-kenya/ ↩︎

  108. Lawyer Wangu, What You Need to Know About Minor Traffic Offences in Kenya. Available at https://www.lawyerwangu.com/resource-library/what-you-need-to-know-about-minor-traffic-offences-in-kenya/ ↩︎

  109. Ibid. ↩︎

  110. Jael Mboga (7 August 2020) Court Awards Lawyer Ahmednassir Abdullahi Shs 750,000 for Damaged Windscreen, The Standard. Available at https://www.standardmedia.co.ke/nairobi/article/2001381569/court-awards-ahmednassir-abdullahi-sh750000-for-damaged-windscreen ↩︎

  111. Clause 14 of the Constitution of Kenya (Amendment) Bill, 2020 (Nairobi, 25 November 2020). ↩︎

  112. Status of Disability in Kenya: Statistics from the 2019 Census https://devinit.org/resources/status-disability-kenya-statistics-2019-census/\#:\~:text=The 2019 census recorded 2.2,of women had a disability. accessed 21 August 2020. ↩︎

  113. For example in respect of corruption icovering road infrastructure projects, see David Ndii Highway Robbery: Budgeted Corruption as State Capture (Nairobi, Africa Centre for Open Governance 2020) <https://africog.org/wp-content/uploads/2020/11/Highway-Robbery-Final.pdf\> accessed 30 November 2020. ↩︎

  114. Maira Martini, (2012) Kenya: Overview of Corruption and Anti-Corruption, U4 Expert Answer. https://www.u4.no/publications/kenya-overview-of-corruption-and-anti-corruption.pdf ↩︎

  115. Ibid. ↩︎

  116. Dauti Kahura, (2019) Lies, Dam Lies and Intrigues: The Arror and Kimwarer Dams Saga, TheElephant. https://www.theelephant.info/features/2019/04/11/lies-dam-lies-and-intrigues-the-arror-and-kimwarer-dams-saga/ ↩︎

  117. Ibid. ↩︎

  118. Maira Martini, (2012) Kenya: Overview of Corruption and Anti-Corruption, U4 Expert Answer. https://www.u4.no/publications/kenya-overview-of-corruption-and-anti-corruption.pdf ↩︎

  119. Ibid. ↩︎

  120. Ibid. ↩︎

  121. Benjamin Muruiki, (25 June 2020) Sirisia MP John Waluke Sentenced to 10 Years in Jail or Pay Kshs. 727M Fine, Citizen Digital. https://citizentv.co.ke/news/sirisia-mp-john-waluke-sentenced-to-10-years-in-jail-or-pay-ksh-727m-fine-336810/ ↩︎

  122. Ibid. ↩︎

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