NAME: DIANA WANGAMATI

REG NO: LSS201-C002-0144/2019

COURSE TITLE: BACHELOR OF LAWS

UNIT TITLE: ADMINISTRATIVE LAW

1.Using suitable authorities, discuss the nature and significance of Judicial Review under
English law and the Laws of Kenya (15mrks)
According to Michael Fordham, Judicial review is the rule of law in action and a central control
mechanism of administrative law (public law) by which the Judiciary discharges the
constitutional responsibility of protecting against abuses of power by public
authorities.1Jurisdiction of the courts when applying for judicial review under Fair
Administration Action Act No.4 of 2015 according to Section 7. (1) Any person who is aggrieved
by an administrative action or decision may apply for review of the administrative action or
decision to (a) a court in accordance with section 8; or (b) a tribunal in exercise of Its
jurisdiction conferred in that regard under any written law. Section 9 (1) Subject to subsection
(2), a person who is aggrieved by Administrative action may, without unreasonable delay, apply
for judicial Review of any administrative action to the High Court or to a subordinate Court
upon which original jurisdiction is conferred by Article 22(3) of the Constitution.

Statutory law on Judicial Review

The constitution of Kenya 2010, article 47 provides that every person has the right to
administrative action that is expeditious, efficient, lawful reasonable and procedurally fair, 2 it
further provides that if a right or a fundamental freedom of a person has been or is likely to be
adversely affected by administrative action, the person has the right to be given written reasons
for the action. In the case of Public Service Board of N.S.W. v Osmond3Kirby P noted ; “ The
overriding duty of public officials who are donated of statutory powers is to act justly, fairly and
in accordance with their statute. Normally, this will require where they have a power to make
discretionary decisions affecting others, an obligation will exist where to do otherwise, would
render nugatory a facility however limited to appeal against the decision. It will also exist where
the absence of stated reasons would diminish a facility to have the decision otherwise tested by
judicial review to ensure that it complies with the law and to ensure that matters have been
taken into account which should have been taken into account which would have been taken
into account which ought not to have been taken into account.4

1
Michael Fordham, Judicial Review Handbook, 6th edition, Hart Publishing, 2012, p. 5
2
Constitution of Kenya 2010
3
(1986) 159 CLR 657
4
https://jade.io/article/67321 <accessed 28 December 2021>
In the above case, there’s a duty to give for any administrative action or lack of giving reasons is
an arbitrary exercise of discretion. At common law there was no general duty to give reasons, In
Republic v National Police Service Commission Ex parte Daniel Chacha 5at para 18: On duty to
give reasons, the applicant relied on Halsbury’s Laws of England Judicial Review (volume 61
(2010) 5th Edition) which states as follows: - “Although it is still correct to say that there is no
general duty arising from requirements of procedural fairness, to give reasons for an
administrative decision in a substantial number of cases a duty to provide reasons has been
found to exist on the particular facts of the case''. In these cases the conclusion was regard to
the nature of the interest concerned and the impact of the decision of that interest, all the
other relevant considerations , a reasoned decision was required. Reasons may also be required
if a decision appears to abnormal and requires explanation but according to The Constitution of
Kenya 2010 article 47 requires administrative bodies, public, private entities to give reasons for
their decisions.Moreover in Fair administrative actions act of 2015 which gives effect to article
47 of the Constitution of Kenya.6 The act gives a wide approach as it applies to all state and non
state agencies, including any person:-

a)Exercising administrative authority;

b)Performing a judicial or quasi – judicial function under the Constitution or any written law; or

whose action, omission or decision affects the legal rights or interests of any person to whom
the action relates.Section 4 of Fair Administrative Action Act agrees with Article 47 of the
Constitution of Kenya and provides that administrative actions are to be taken expeditiously,
efficiently and lawfully.Lastly judicial review is also provided under Sections 7 – 11 of Fair
Administrative Action Act.

Procedure law for Judicial Review

There are two main stages for judicial review; the first one is called the leave stage and the final
stage is is the substantive stage. The leave stage is usually ex parte, and the applicant has to file
the following documents; the certificate of urgency, chamber summons application, statutory

5
[2016] e KLR
6
The Fair Administrative Actions Act 2015
statement and the verifying affidavit. After the court approves the applicant to proceed is when
the substantive application can be filed by way of Notice of Motion plus the supporting
affidavit. (Order 53 Rule 3 of the Civil Procedure Rules provide that the application is to be
made by Notice of Motion, when leave has been granted to apply for an order of mandamus,
prohibition or certiorari the application shall be made within 21 days by Notice of Motion). In
the case of James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others [2017] e
KLR7The court noted that the proceedings under order 53 can only start after leave has been
obtained and then originated by the notice of motion filed pursuant to leave granted. It would
be somewhat ridiculous to bring the application for leave by way of an originating summons
and once leave is granted originating summons is then swallowed up or submerged in the
notice of motion…. Therefore both on the letter of the law and the authorities, judicial review
proceedings begin after leave is sought is granted. An application for certiorari is subject to time
limits of 6 months, leave shall not be granted to apply for an order of certiorari to remove any
judgment, order, decree, conviction or other proceeding for the purpose of its being quashed
unless the application for leave is made not later than six months after the date of the
proceeding or such shorter period as may be prescribed by any Act. 8

Application for Judicial Review

Fair Administrative Action Act empowers any person who is aggrieved by an administrative
action or decision to apply for judicial review to the High Court or a subordinate court with
jurisdiction.9The application must be made without unreasonable delay. Further, the courts will
not entertain an action unless the internal mechanisms available including review and appeal
and any other remedy under any written law have been exhausted. 10however, in certain
circumstances and upon application by an aggrieved person, the court may exempt such a
person from the requirement to exhaust internal mechanisms if such exemption would be in

7
Judicial Review Application No. 2 of 2017
8
Order 53 Rule 2 of the Civil Procedure Rules Kenya

9
Section 9(1).
10
Section 9(2)&(3
the interest of justice.11An application under The Act must be determined within ninety days. 12
Applications for judicial review are heard without regard to procedural technicalities 13

Special Procedure

Fair Administrative Action Act states that there’s a special procedure for dealing with
applications made under It.The chief justice makes rules of practice for regulating the
procedure and practice in matters relating to judicial review of administrative action. 14However,
the decision of making such rules is purely at the discretion of the chief justice. He may decide
that order 53 of The civil procedure rules continues to regulate procedure for judicial review.

Reliefs

Fair Administrative Action Act has diversified the nature of reliefs that can be sought through a
judicial review Application. Under the Law Reform Act and Order 53 of the Civil Procedure rules,
one could only Seek mandamus, prohibition and certiorari. A court hearing an application for
judicial review is mow empowered to make any order that is just and equitable including: 15a
declaration of rights, a restraining order, ordering an administrator to give reasons for an action
or decision, an order of prohibition, setting aside a decision taken and directing that the
administrator reconsiders the matter with or without instructions, a temporary interdict, an
order awarding costs and other pecuniary compensation where appropriate and an order
directing the taking of an action where there’s been an omission.

Significance of Judicial Review

. An element of the rule of law

The Constitution of Kenya 2010 at article 165 (3) state the significance of judicial review as an
element of the rule of law. The ability of the courts to judicially review executive conduct in
matters of national security is an element of the rule of law. In R. v. Committee of the Lords of
the Judicial Committee of the Privy Council acting for the Visitor of the University of London,
11
Section 9(4).
12
Section 8
13
6 Section 10(1).
14
Section 10(2)
15
Section 11
ex parte Vijayatunga (1987),16Judge Simon Brown said: “Judicial review is the exercise of the
court’s inherent power at common law to determine whether action is lawful or not; in a word
to uphold the rule of law.’’

An aid to accountability

The judiciary has the power through judicial review mechanisms to review executive conduct in
matters of national security. This power comprises the authority of the court both to review the
constitutionality or validity of executive conduct and to pass upon their constitutionality or
validity, and to disregard, regard acts which are unconstitutional. 17

Consistency and precedent

Precedent is past judgement made by judges in the court of law, The judgements made in
passing time can serve to establish trends, thus it indicates the next step in interpretations of
the law. Judicial Review rulings of the courts are of precedential value and can provide direction
on desirable executive conduct. Indicated by the Law Council of Australia in (Judicial Review)
Bill 1998

An individual right

Under The constitution of Kenya 2010, article 3(1) every person has an obligation to respect,
uphold and defend The Constitution. In terms of Article 22(1) “Every person has the right to
institute Court proceedings claiming that a right or fundamental freedom in the Bill of Rights
has been denied, violated or infringed, or is threatened.” An individual’s right to review of
decisions in relation to an administrator conduct is as important as bringing an action in the
courts to enforce a right against a fellow citizen.

2.Examine any 5 barriers and 5 objections to judicial review under English Law and in the
Laws of Kenya (15mrks)

Barriers

Separation of Powers
16
[1988] Q.B. 322, High Court (Queen’s Bench) (England & Wales).
17
Paul Craig (2008) Administrative Law, Sweet & Maxwell, London;
The executive in ensuring national security of citizens often results in suits that question
constitutionality or legality of its actions. A citizen aggrieved by executive conduct is free to
petition for judicial review of such on grounds that his rights have been infringed or the correct
procedure has not been adopted. When the executive responds to such suit by a plea of
executive privilege, a court has to balance the determination of justice and the powers arms of
government and what the constitution mandates them to do. The Constitutional mandates are
conferred upon the Legislature, Executive and

Judiciary. The separation of powers and checks and balances. In deference to separation of
powers, courts acknowledge the need to maintain the margins between statutory and
constitutional judicial review. It power has been argued that if the courts were in statutory
judicial review to assume a jurisdiction to review acts or decisions which are unfair in the
opinion of the court. Courts would be assuming a jurisdiction to do the very thing which is to be
done by the executive, namely, making policy. If judicial review were to trespass on the exercise
of executive power, it would put itself at risk.

Judicial review in Kenya has different definition,

The first approach is judicial review under The Constitution Of Kenya 2010 Articles 23(1) and
165(3) through the High Court and has two intended outcomes, first to determine whether a
right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or
threatened; and second whether any law or conduct is inconsistent with or in contravention of
the Constitution. This approach is concerned with adherence of laws and conduct to
fundamental freedoms as well as their constitutionality. This approach is on the idea of
constitution being superior over the legislature, executive and judiciary with the judiciary as the
principal interpreter of what the constitution is.

The second approach is statutory judicial review under section 4 of the Fair Administrative
Action Act 2015 and section 8(2) of the Law Reform Act cap 16 is Where the court conducts an
examination of the manner in which a decision was made or an act done or not done. This
approach is concerned with procedural fairness and is not involved in the issues raised. It is a
tool in Administrative law for checking the conduct of executive administrators. This approach
is on the idea that parliamentary and executive supremacy over the judiciary so that the
judiciary may not be concerned with the constitution or legality of a law.

The third element of review under the Civil Procedure Act cap 21 under Order 45 of the Civil
Procedure Rules that empowers a court to review Its own judgments and orders. In all three
definitions, the expression judicial review has been used and there is need for a definitional
clarification that would determine the result of each approach.

Parliament

Parliament is able to define the scope of judicial review. The first is Parliament’s capacity to
make laws making the availability of judicial review provided for in the Constitution. The second
are the various mechanisms available to Parliament should it seek to remove or limit the scope
of judicial review Under Article 23 (2) of the Kenya Constitution 2010, parliament legislates to
give original jurisdiction in appropriate cases to subordinate courts to hear and determine
applications for redress of a denial, violation or infringement of, or threat to, a right or
fundamental freedom in the Bill of Rights. This provision does not give any jurisdiction to
undertake judicial review but does it empowers Parliament to give jurisdiction on subordinate
courts to undertake judicial review of executive action. Article 162(2) of the Kenya Constitution
2010 gives Parliament power to make laws defining the jurisdiction of any court involving the
High Court plus employment, labor relations, the environment, the use, occupation and title to
land. Parliament can under sub Article (3) determine the jurisdiction and functions of the
courts. The above provisions show that the Parliament has significant legislative power to
extend judicial review beyond what is expressed in the Constitution. Parliament has power to
limit or remove any judicial review jurisdiction that it has created, so long as any limitation is
consistent with the constitution.

Jurisdictional limits

The jurisdiction of any court provides its judicial authority. Where a court has no jurisdiction, it
has no right for judicial proceedings or judicial decision. In The Owners of Motor Vessel “Lillian
S” v Caltex Oil Kenya Ltd18where it was stated: “Jurisdiction is everything. Without it, a court
has no power to make one step. Where a court has no jurisdiction there would be no basis for a
continuation of proceedings pending other evidence and a court of law downs its tools in
respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.
“The High Court has jurisdiction under the Constitution of Kenya 2010, Article 165 (3) (d) (ii) to
hear any question respecting the interpretation of the constitution including the determination
of a question whether anything said to be done under the authority of the Constitution or of
any law is inconsistent with, or in contravention of the Constitution

The Public sphere.

Judicial review is only available against a public body in a public law matter. The two
requirements which need to be satisfied are. First, the body must be a public body whose
activities can be controlled by judicial review. Secondly, the subject matter of the challenge
must involve claims based on public law principles not the enforcement of private law rights. In
Okech Kadamas vs. Municipal Council of Kisumu,19 where Platt, JA stated as follows: The order
of judicial review is only available where an issue of “public law” is involved but the expressions
“public law” and “private law” are recent immigrants and whilst convenient for descriptive
purposes must be used with caution, since The English Law traditionally fastens not so much
upon principles as upon remedies. On the other hand to concentrate upon remedies would in
the present context involve a degree of circuitry or levitation by traction applied to shoestrings,
since the remedy of certiorari might well be available if the health authority is in breach of a
“public law” obligation but would not be if it is only in breach of a “private law” obligation

Objections

Administrative Action Act widens the scope of fair administrative action and judicial review to
the administrative actions of public and private persons or bodies. But before the changes in
the constitution and Fair Administrative Action Act, there were opinion that Judicial Review
should focus on the exercise of power Irrespective of the source.. that it should not be on
whether the powers exercised were public, but that every exercise of power had to adversely
18
[1989] KLR 1.
19
Civil Appeal No.109 of 1984 [1985] KLR 954
affect individual rights In Republic v Kenya Cricket Association & 2 other the applicant brought
Judicial Review proceedings seeking orders of certiorari and prohibition against the
Respondents, the Kenya Cricket Association (KCA) The Hon. Mr. Justice Ahmed Ebrahim (2(3 rd
Respondent ICC). Respondents filed arguments raising an objection on jurisdiction that judicial
Review does not apply to private bodies.Held; udicial review does not lie against private bodies.
This case is arguably. The Fair Administrative Action Act makes no distinction between public
and private actors. Neither does the constitution of Kenya 2010, the Bill of rights extends the
remedy of Judicial Review to non state actors.

American legal writers such as Jeremy Waldron and Mark Tushnet have advanced the view that
judicial review is unnecessary,20 and democratically illegitimate, on Alexander Bickel’s21
counter-majoritarian theory that judicial review permits unelected or otherwise unaccountable
officials-judges, to “tell the people’s elected representative that they cannot govern as they
like,”22 Waldron and Tushnet argued against judicial review as working against constitutionalism
bringing the idea of “we all ought to participate in creating Constitutional law through actions in
politics.”23For Waldron, judicial review endangers constitutionalism because “…it degrades
citizens and brushes aside their representation and political equality in resolving issues about
rights.”24

Moreover, judicial review has led to irregular changes in the constitution by the courts. The
most change is the displacement of the constitution from being the supreme law by
introducing other ideas of justice, natural rights, and common law concepts as superior to the
written laws. Justice Rawal stated; ``whereas the court is mindful of the principle that the
Legislature has the power to legislate and Judges shall give due deference to those words by
keeping the balances and proportionality in the context of fast progressing issues of human

20
Tushnet M V, Taking The Constitution Away From The Courts, (New Jersey: Princeton
University Press, 1999
21
Bickel AM , The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2d
Edition (New Haven: Yale University Press, 1986)
22
Ely J H, Democracy and Distrust: A Theory of Judicial Review (Massachusetts: Harvard
University Press 1980), 4.
23
Tushnet, Taking the Constitution Away from the Courts, (Princeton University Press 200)
157
24
Waldron, “The Core of the Case against Judicial Review,” 115 Yale L.J. (2006). 1353.
rights which have given birth to the enshrinement of fundamental rights in the constitution, the
Constitution should not represent a mere body or skeleton without a soul or spirit of its own.
The Constitution being a living tree with roots, whose branches are expanding in natural
surroundings, must have natural and robust roots to ensure the growth of its branches, stems,
flowers and fruits.25

BIBLIOGRAPHY

1. The Constitution of Kenya 2010.

2. The Fair Administrative Action Act No. 4 of 2015
3. The Kenya Law Reforms
4. The Civil Procedure Act Chapter 21
5. Barnett, H “Constitutional and Administrative Law.” 7th ed. – London ; New York :
Routledge-Cavendish, 2009
6. Becker, Carl Lotus. “The Declaration of Independence: A Study in the History of Political
Ideas.” Harcourt, Brace, 1922.
7. Paul Craig (2008) Administrative Law, Sweet & Maxwell, London
8. Michael Fordham, Judicial Review Handbook, 6th edition, Hart Publishing, 2012,

25
Charles Lukeyen Nabori & 9 Others vs. The Hon. Attorney General & 3 Others Nairobi HCCP
No. 466 of 2006 [2007] 2 KLR 331