The High Court on Thursday declined to declare the dusk-to-dawn curfew to tame the spread of coronavirus illegal following a suit by the Law Society of Kenya (LSK).
The LSK moved to court to challenge the order by President Uhuru Kenyatta as well as the unreasonable use of force by police implementing it.
The society also sought orders compelling the government to publish guidelines for the curfew, quarantine and containment of the virus.
In his ruling, Justice Weldon Korir said he was not convinced that there was a need to issue special guidelines for the curfew order.
“The challenge appears to be the implementation of the law already in place. Directing that other regulations be formulated and issued on top of what is already in place will not solve the underlying problem,” he said.
The court, however, directed police not to use unreasonable force while enforcing the curfew imposed to contain the spread of Covid-19.
Justice Korir said the unreasonable use of force was unconstitutional.
The judge noted incidents such as the killing of a 13-year-old boy in Mathare, Nairobi, and the beating up of ferry users at the Likoni crossing in Mombasa on March 27.
“These incidents in my view are sufficient, on a balance of probabilities, to prove the petitioner’s case that the police killed and brutalised the people of Kenya in the process of enforcing the curfew order,” he said.
He also noted the existence of evidence that the people of Mombasa were attacked by police officers before the curfew, whose timings are 7pm to 5am.
“Diseases are not contained by visiting violence on members of the public. One cannot suppress or contain a virus by beating up people. The National Police Service must be held responsible and accountable for violating the rights to life and dignity among other rights,” the judge said.
And in a win for members of the LSK and the Independent Policing Oversight Authority (Ipoa), the judge said they should be included in the list of persons exempted from the curfew order.
He gave Interior Cabinet Secretary Fred Matiang’i five days to include the members “in the list of services, personnel or workers exempted from the provisions of the curfew”.