The Case for structural interdicts in the protection and fulfillment of socio-economic rights in Kenya
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In 2010, Kenya promulgated a new constitution that bore all the hallmarks of progress and which is widely considered transformative. One stark example of this was the unprecedented inclusion of Socio - Economic Rights under in the constitution under Article 43, thereby granting very high legal status to these rights which have been traditionally considered the results of proper social and governmental order crystallized in protection and fulfilment of civil and political rights. This in effect created the possibility for a plethora of transformative jurisprudence in the Kenyan legal landscape with the judiciary leading the way through proper interpretation of the law concerning human rights and defining contours of enforcement of the same. This new order brings with it novel remedies for compliance in the event of a breach of economic and social rights. One such remedy is the Structural Interdict (supervisory orders) which allows a court to monitor compliance with its orders over a specific and determined period of time after a declaration of rights has been made. Although now nipped in the bud, this remedy was in use in Kenya and increasingly gained legal notoriety up until the Court of Appeal capped its use in the landmark case of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016} eKLR (herein after referred to as 'The Mitu-Bell Case'). This dissertation analyses that decision in light of the transformative ideals of the Kenyan constitution and proffers a contrary perspective. It considers the judgment of the court of appeal, although well-reasoned, severely retrogressive and inimical to the ideals of progress espoused by the Constitution of Kenya 2010. The arguments of the Court of Appeal are considered, analyzed and countered; hence the case for structural interdicts in Kenya.