REG NO.

NAME SIGNATURE
G34/3298/2017 WANYONYI COLLINS
WASIEBA
G34/5325/2017 MUTISYA EBENEZER
NGUMBAU
G34/3297/2017 ONG’AYO JEFFREY
OCHIENG’
G34/3309/2017 CHOMBA DAVIES KARIUKI
G34/3211/2017 MUTHEE COLLINS GITHUKU
G34/3299/2017 ORINA KEVIN ONYONKA
G34/3362/2017 EMMANUEL SIMIYU
G34/3313/2017 GICHOHI JOHN GATURUKU
G34/45918/201 MATHENGE PRISCILLAH
7 WAMBUI
G34/46069/201 KIMUNGE VIVIAN
7 WAKARINDI
G34/1282/2015 INNOCENT OWOUR NGARE
G34/39071/201 KIPNG’ETICH WILFRED
6
 Briefly discuss the history, types and characteristics of prerogative orders as
judicial review remedies in Kenya.
Introduction

Prerogative orders refer to orders issued by courts to government agencies when they do not
follow the procedures of natural justice. Kenyan courts exercise this jurisdiction through
invoking of various orders. This is a common law approach where there are three main
judicial remedies for maladministration1, which were for a long time referred to as
prerogative writs. Writs are official orders.

These remedies are certiorari, prohibition and mandamus. An order of certiorari is for
quashing agency decisions that are ultra vires, unreasonable, decisions made in bad faith,
based on irrelevant considerations2, basically all errors outlined in Section 7 (2) of the Fair
Administrative Action Act of 2015. An order of prohibition is an order restraining the
performance or continuance of an unlawful action3. An order of mandamus is issued to
secure performance of a specific public duty imposed on an agency by law4. Basically, it is
mandatory for a government agency to perform that duty imposed on it.
Traditionally, there used to be six writs. The other three are habeas corpus, which is a
demand that a prisoner be taken to court to determine whether there is lawful detention of
the individual; procedendo, which is to send a case from an appellate court to a lower court
with an order to proceed with judgement; and quo warranto, requiring a person to show by
what authority they exercise a power.

While certiorari looks to the past, prohibition looks to the future. Whether the courts will
grant one of these rules depends on the circumstances5.

CONTEXTUAL BACKGROUND/HISTORY
1
Migai Aketch, Administrative Law, page 494.
2
Peter Kaluma, Judicial Review.
3
Peter Kaluma, Judicial Review
4
Migai Aketch, Administrative Law, page 494.
5
Migai Aketch, Administrative Law, page 493.
In England, Judicial Review developed from the ancient prerogative writs of Mandamus,
Prohibition and Certiorari. These orders are traceable to the 13th century6 when the King’s Bench
was England highest court. Judicial review in Kenya was derived from the English system
entirely before the 2010 Constitution. The Law Reform Act vested the power to issue prerogative
powers to the High Court of Kenya in all cases as opposed to the High Court of England.7
Another legal basis for judicial review before the 2010 constitution include Civil Procedure Act,
especially the Order 53 of the Civil Procedure Rules. Effectiveness to check the abuse of
government power was hindered during this time due to various reasons. “Order 53 established
restrictive and technical rules of procedure, whose effect was to limit access to judicial review,
courts adopted a restrictive approach to standing with the effect that judicial review applications
were not always determined on the merits and lastly the judiciary was subservient to the
executive and judges lacked decisional independence.”8

Maladministration has a serious impact for affected persons hence the need for prerogative
orders. An example is a matatu sacco in Kenya has been unlawfully cancelled the operating
license of its route on allegations that later turn out to be false. There sure will be some economic
loss suffered. Prerogative orders will remedy instances like this depending on their suitability. In
England, there have been developments that have not yet been effected in Kenya. The
constitution of Kenya 2010 however does seek to handle the foregoing challenges. It establishes
new basis for judicial review by providing that ‘Every person has the right to administrative
action that is expeditious, efficient, lawful, reasonable and procedurally fair.’9 It also seeks to
enhance judicial independence and accountability by vetting judicial officers who were
appointed under the 1969 constitution.

TYPES OF PREROGATIVE ORDERS

PROHIBITION

6
First Appearing in a case about 1275-1280 e.g. Prior of Bridlington V Abbot of Citcaux in Sayless, Select Cases in
the KB, Selden Society, (1279), vol 55 page 50.
7
Jotham Mulati Welamondi v Chairman, Electoral Commission of Kenya [2002] 1 KLR 486.
8
Akech M, Administrative Law.
9
Article 47(1), Constitution of Kenya 2010.
It is an order from the high court directed to an inferior tribunal or body which forbids that
tribunal or body to continue with proceedings therein in excess of its jurisdiction or in
contravention of the laws of the land. It lies not only for excess of jurisdiction or absence of it
but also for a departure from rules of natural justice. It does not however, lie to correct the
course, practice or procedure of an inferior tribunal or wrong decision on the merits of the
proceedings.

Prohibition lies to restrain authorities or bodies which are inferior to high court from assuming
jurisdiction where there is none from doing what they are authorized to do. It does not lie to
correct the procedure of an inferior tribunal or decision on the merits of the proceedings.

Since the order of prohibition issues to restrain unlawful action, the order hence is neither a
means of reviewing errors that have already occurred nor of inquiring into past irregularities. The
order looks to the future and is meant to contain or stop an anticipated event and is completely
unavailable for a decision already made.

In Kenya, prohibition as an order has been of great importance in safeguarding fundamental

rights and freedoms. In most cases, prohibition has been invoked to secure the right to fair
hearing by individuals who anticipate unfair treatment by tribunals to which they have been
subjected to trial. Prohibition also issues to prohibit trial of persons on criminal charges brought
to secure ends other than those for which the criminal trial process exists.10

In Kenya National Examination Council V R ex parte Geoffrey Gathenji Njoroge and Others11,
it was stated by the High Court that, where a decision has been made whether in excess or lack of
jurisdiction or whether in violation of rules of natural justice, an order of prohibition would not
be efficacious against decisions made. Prohibition cannot quash a decision which has already
been made, it can only prevent the making of contemplated decisions.

CERTIORARI

The orders of certiorari are traceable to the time when the King’s Bench was recognized as
England’s highest Court with supervisory powers over all other Courts. During this time the

10
Judicial Review, Peter Kaluma.
11
Kenya National Examination Council v Republic EX-parte Geoffrey Githinji Njoroge and 9 others [1997] eKLR
order did not issue to litigant’s ex debito justitiae but as a prerogative writ in sense that Kings,
acting through his judges would decide in each case whether certiorari should issue to remedy an
alleged injustice.

Certiorari as an order is assigned to prevent the abuse of power. Its purpose is to ensure that
every individual is given fair treatment by authority to which he is subjected. When issued, the
order brings up to the High Court a decision of an inferior court, tribunal, public authority or any
other decision made to be quashed. Certiorari is concerned with decision making process and
only issues when the court is convinced that the decision challenged was reached without or in
excess jurisdiction, in breach of rules of natural justice or contrary to the law.12

When issued, certiorari quashes a past decision or action. The order thus is issued when the body
in question is disposed of the matter and rendered a decision or taken action on the matter in the
issue. Application of certiorari is thus a challenge to the manner in which a decision has been
arrived at.

In Captain Geoffrey Kujoga Murungi V Attorney General, it was stated by the high court that
certiorari deals with decisions already made. Such an order(certiorari)can only be issued where
the court considers that the decision under attack was reached without or in excess of jurisdiction
or in breach of the rules of natural justice or contrary to the law. Thus the order of certiorari is
not a restraining order.

Effect of the order of certiorari is to restore the status quo ante. Accordingly, when issued, an
order of certiorari restores the situation that existed before a decision quashed was made. Courts
of Appeal expressed itself on its position in the case of Central Organizing of Trade Unions(K)
V Benjamin K Nzioka and others thus the quashing of the Registrar decision simply meant as we
have stated above that the status quo that existed before the bad decision of the Registrar was
made on 5th 1993 is revived and if there is any formal act that is required on the part of the
Registrar to bring this about, he should have done so at once, if he has not, then he must do so
now or risk the censure of this court for contemptuous behavior.

THE MANDATORY ORDER

12
Judicial Review, Peter Kaluma.
This order was initially referred as “mandamus” before the procedural reforms that came with
the Civil Procedure Rules Part 54. It is a discretionary order which is granted by the high court in
ordering the performance of public legal duty owed by public authorities. The principle in
granting orders of mandamus is that “except where the delay is duly accounted for, mandamus
will not be granted unless applied for within a reasonable time after the demand and refusal to
the act.” Mandamus order is usually used as a weapon by ordinary citizen of nation against
public authority, when it fails to perform its duty owed to him or her.

Disobedience of mandamus order is a contempt of court, punishable by fine or imprisonment.

As a prerogative order, mandamus is used to enforce statutory duty, though, occasionally it may
be sought to enforce a non-statutory duty, such as the duty of a police to prosecute offenders
against the law.

Unlike quashing and prohibitory orders which deal with wrongful action, mandatory order deals
with wrongful inaction.

GROUNDS FOR MANDAMUS ORDER

An applicant must have demanded performance and the respective respondent must have refused
to perform if a public administrative has failed to perform its function, you must first approach
the administrative body and demand for performance and it is after this that you can seek judicial
review.

There should be no other appropriate remedy available due its supplementary nature, as captured
in Lord’s Manfield sweeping statement:

“It was introduced, to prevent disorder from failure of justice, and defect of police.
Therefore, it ought to be used upon all occasions where the law has established no
specific remedy, and where in justice and good government there ought to be one. The
value of the matter, or the degree of its importance to the public police, is not
scrupulously weighed. If there be a right, and no other specific remedy, this should not be
denied.”13

The public duty owed should be of an imperative nature, not a discretionary.

13
H.W.R Wade, Administrative law
The applicant must have a locus standi in the matter he is applying for; the applicant must have a
legal right to expect the duty to be performed and has suffered some detriment resulting from the
failure of the body to perform its duty. In the absence of such a right, mandamus cannot be
issued.14

However, this portrayed a strict locus standi requirement laying emphasis on individual rights as
against the general public interest. This rule has however been relaxed and now emphasis is put
on public interest rather than individual rights.

The order of mandamus issues only to compel the performance of a peremptory public duty but
not to dictate the exercise of discretionary powers.in instances where legislation imposes a duty
but gives discretion as to the method of performing the duty to an authority, an order of
mandamus cannot issue to command that the duty is to be carried out in a specific manner.15

The order of mandamus is issued to compel performance of a specific duty and not just exercise
of mere powers. In KNEC v R ex parte Geoffrey Gathinji Njoroge and others, the court held that,
times and frequency of the exams are left to the discretion of the council and it cannot be
enforced by mandamus to hold exam at a particular time of the year.16

An order of mandamus can also be issued on the basis of legitimate expectation.in the applicant
had a legitimate expectation after accepting award of the tender that the respondent would follow
on the promise made in the award letter that they would be called upon to sign. This however did
not happen. The applicant applied for an order of mandamus successfully ordering the
respondent to notify the applicant of the procurement process and should they default a
mandamus shall issue to compel the respondent to execute the formal contract.

The order must command no more than the party against whom the application is legally bound
to perform17

Types of mandamus

Alternative mandamus. It is issued upon first application for relief. It compels the defendant to
perform or show up in court to give reasons for not performing.
14
Churchil meshack suba and others v Egerton university 1996
15
Judicial review by kaluma
16
KNEC v R exparte Geoffrey Gathinji Njoroge and others
17
Judicial review by kaluma
Peremptory mandamus this is an absolute command to the respondent to perform its duty. It is
issued when the respondent fails to show sufficient cause in answering to alternative mandamus.

Continuing mandamus.it is issued to a lower authority in general public interest asking the
authority to perform its duty expeditiously for an unstipulated amount of time so as to prevent
miscarriage of justice.18

General characteristics of prerogative orders

 They are discretionary in nature; courts are at discretion to withhold it in unsuitable

cases.

 They are common law remedies since they mostly cover the field of government powers.

 They are mostly regarded as supplementary remedies since they can only be issued where
there is no alternative remedy.

Grounds for prerogative orders

a) Illegality

i. Excess of jurisdiction

Whereby an administrative agency acts in excess of powers conferred to the by enabling statute.
Government bodies are expected to operate within the ambits of the law, any action in excess
amounts to ultra-vires providing a ground for a prerogative order to be sought.

ii. Improper motive

This occurs in situations whereby an authority exercises its power execution of its mandate in
good faith though not for the intent/purpose intended by the statute: collateral purpose.

b) Irrationality

I. Failure to exercise discretion

Statute dictates that authorities should apply their mind to the facts and circumstances of the case
at hand. Failure to exercise discretion is disregarding due care and caution in the exercise of
discretion in exercise of statutory duties.
18
Vineet Narain v Union of India AIR 1996
 II. Irrelevant consideration

This provides another avenue for prerogative order, in instances whereby authorities put into
account irrelevant or extraneous considerations in arriving at its decision.

III. Mala fide

Statutory authorities should not act maliciously, out of personal animosity, ill-will or vengeance
and with intent to achieve certain ulterior motive alien to the statute. Malice can either be in fact
or in law.

Discuss the remedies provided in the Fair Administrative Action Act 2015. Do
you think this remedies are adequate to enhance the attainment of
administrative justice in Kenya? Explain your answer.

Background of the Fair Administrative Action Act 2015

The fair administrative action act is an act of parliament which was assented on 27th May, 2015
and commenced on 17th June, 2015 to give effect to article 47 of the constitution which states
that” Every person has a right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair.”

Part 2 of the bill applies its provisions to all persons exercising administrative authority, or a
judicial or quasi-judicial function, and requires that all such action be carried out in a procedural
and efficient manner. It also provides for the giving of notice to the person likely to be affected
by the action and involvement of the public where the action is likely to affect the public.

Part 3 of the bill provides for judicial review of administrative action by the high court or by a
tribunal, and gives instances in which such action may be reviewed.

Part 4 of the bill clarifies that the provisions of the bill are in addition to the general principles
of common law and the rules of natural justice.
The fair administrative act is there to supplement the constitution in ensuring all actions and
procedures used in deciding or taking action must be fair without any influence by personal bias
of the person deciding the action.

It is also set to preserve the national values and principles of governance set out in the
constitution under article 10 such as participation of the people in decisions that will affect the
public, good governance, transparency and accountability.

It also ensures the public service operates in accordance to certain values and principles as
stipulated under article 232 such as responsive, prompt, effective, impartial and equitable
provision of services and accountability of administrative acts.

The commission on administrative justice (Ombudsman) is set to promote efficient public

service delivery by enforcing the right to fair administrative action.

Jurisprudential Analysis of Section 9 and 10 of the Fair Administrative Action Act

In May 2015, parliament passed the fair administrative action act, 2015 to give effect to article
47 of the constitution.19 Judicial review is mainly focused in part three. The Act ends the
monopolistic reign of the high court as the only body capable of granting judicial review.20

Procedure for Judicial Review

The Act envisages that subordinate courts will be empowered to adjudicate some judicial review
applications. Accordingly, section 9(1) provides that aggrieved parties may without unreasonable
delay approach the high court or a subordinate court upon which original jurisdiction has been
conferred pursuant to Article 22(3) of the constitution.21 There is a drafting error in this section
as the correct reference is to article 22(2) which requires parliament to enact legislation to give
original jurisdiction in appropriate cases to subordinate courts to hear and determine applications
of redress of a denial, violation or infringement of, or threat to, a right or a fundamental freedom
in the Bill of rights. Article 23 only lists some of the appropriate reliefs, including an order of
judicial review, that a court may grant in proceedings to enforce the bill of rights.

19
Act No 4 of 2015, assented 25th May, 2015; commencement date 25th June 2015.
20
See section 8 and 9 of the Law Reform Act, cap 25.
21
Article 23(2) of the CoK.
The Act requires applicants to exhaust internal mechanisms for review or appeal and all remedies
available under any other written law before making an application to court.22Otherwise the court
will direct the applicant to first exhaust alternative remedies before instituting judicial review
applications.23Nevertheless, in exceptional circumstances the courts may on application exempt
applicants from the obligation to exhaust any remedy in the interest of justice.24Parties aggrieved
by orders of the high court in judicial review proceedings may appeal to the court of appeal.25

Remedies /Reliefs in Proceedings for Judicial Review

The Act expands the scope of judicial review reliefs beyond the traditional three-mandamus,
prohibition and certiorari.26In this regard, section 11 empowers the courts to grant any order that
is just and equitable including the ten reliefs expressly listed in the section. The term just and
equitable must of necessity be interpreted to mean appropriate relief which is the term used in
article 23(3).The same has been interpreted by the courts in Nancy Makokha Baraza v Judicial
service commission27 as being wide and unrestrictive and also inclusive rather than exclusive and
to allow the court to make appropriate orders and grant remedies as the situation demands and as
the need arises.

Some of the reliefs outlined is section 11 of the act include: a declaration, Injunction, a direction
to give reasons, prohibition, setting aside and remission for reconsideration, mandamus,
temporary interdicts and other temporary reliefs, and an award of costs. The act further
elaborates reliefs in proceedings relating to failure to act.28 The court may direct the taking of the
action, declare the rights of parties, direct parties to do or refrain from doing any act, or make an
orders as to costs or other monetary compensation.29

Efficacy of the remedies provided by the Fair Administrative Act 2015

Before the promulgation and implementation of the new constitution of Kenya 2010, there were
only three remedies available to an applicant for Judicial Review in Kenya, namely: Certiorari,

22
Section 9(2)
23
Section 9(3)
24
Section 9(4)
25
Section 9(5)
26
Section 8 cap 25
27
[2012]eKLR
28
Section 11(2)
29
Ibid.
Mandamus and Prohibition. This were codified and provided for under Section 9 of the Law
Reform Act Cap 26 Laws of Kenya. This was later replaced when the new Constitution of Kenya
2010 was promulgated and implemented. The new constitution under Article 47 does declare that
every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair. Further, the constitution obliges parliament to enact a law that
gives effect to the right to fair administrative action through the provision for the review of
administrative action by courts and independent tribunals. This therefore led to the creation of
the Fair Administrative Act 2015.

The fair Administrative Act 2015 does include far more Judicial Review remedies than existed
before. Section 11 (1) of the Fair Administrative Act does provide numerous remedies which
include: orders of declaration of rights, injunctions, directive to give reasons and damages in
addition to the existing orders of Certiorari, Prohibitions and Mandamus.30 This is important as it
expands the scope of judicial review and the necessary remedies accessible to the courts.

Kenyan courts, through previously decided cases, have demonstrated their ability to intervene for
the protection of Citizens rights and tame discretionary abuse of powers by administrative
bodies. This has been made possible by the boosted list of remedies of Judicial Review. The
order of Certiorari has been used to challenge the manner in which decisions have been arrived at
by administrative bodies. This can be seen in the case: Republic v County Government of
Mombasa Ex-parte Outdoor Advertising Association of Kenya (2014) eKLR and Republic v
National Transport & Safety Authority (2015) eKLR.

The orders of Prohibition are also vital in the safeguarding of fundamental human rights and
freedoms. It has been involved in securing the right to fair hearing by individuals who anticipate
unfair treatment by administrative bodies or tribunals. The following cases provide a good
example of its efficacy in enhancing attainment of administrative justice: Cortec Mining Kenya
Limited v Cabinet Secretary, Attorney General & 8 others (2015) eKLR and Charles
Steven Mbindyo v National Land Commission, African Inland Church & another (2016)
eKLR.

30
Order 53, Supreme Court Practice Rules. See discussion on the effect of the said amendments in O'Reilly v.
Mackman; Kamlesh Manshukhal Damji Pattni & Goldenberg International Ltd. v. R, Misc Criminal Application No.
322 of 1999 (Preliminary Objection)
The order of Mandamus has helped compel performance of a public duty by the relevant public
administrative bodies. This has quite helped in the issue of service delivery to the public as the
public bodies are held accountable. The following cases: Njenga Mwangi Wachira & Partners
v County Secretary, City county of Nairobi (2018) eKLR and Republic v Attorney General
& another Ex-parte Ongata Works Limited (2016) eKLR. Therefore, the order enjoys vast
popularity and support as a means of prodding inert and inept officials and authorities into
fulfillment of their obligations.31

It is also important to point out that the Fair Administrative Act 2015 does allow for orders for
damages which are quite important as it provides remedy to those affected by unfair
administrative actions. Moreover, it helps administrative bodies to practice caution when
applying discretionary powers as affected citizens can always benefit in terms of damages at
their expense. Damages can also be sought in conjunction with other remedies such as
injunctions which is quite important as those disadvantaged by administrative actions are able to
not only get justice but also compensation.

The substantive law then is generally adequate to present needs and will doubtless be developed
by the courts to cope with future requirements. This brings us to the procedural law which
regulates the administration of Judicial Review. Before implementation of the new Constitution
2010, the procedural laws governing Judicial Review were quite strict and thus various cases
were thrown out on grounds of procedural technicalities. For example one could not be allowed
to seek alternative remedies in the same proceedings. This therefore led to doubts about the
appropriate remedy to choose. Yet that choice was critical as a wrong one could lead to dismissal
of the case on procedural grounds.

The Fair Administrative Act2015 however does change that original stand and emphasis on
procedure. Section 10 (1) of the act does state that: an application for judicial review shall be
heard and determined without undue regard to procedural technicalities. This is fundamental in
reducing the strict timelines and procedures needed for one to access judicial review remedies. It
has also largely contributed in taming the arbitrary use of discretionary powers by administrative
bodies and helped quicken access to justice.

Conclusion
31
HWR. Wade, Administrative Law 640 (1982)
Markedly, the Fair Administrative Action Act has played an important role in achieving
improved public service delivery. Today, it is notable that administrative decisions are not only
speedy, but are based on public input, the needs of those affected, plus evidence and rational
thinking. Nevertheless, it is necessary to highlight that most of the cases brought under the Fair
Administrative Action Act have primarily focused on the concerns of the wealthier sections of
Kenyan society. Not only have professionals found guilty in disciplinary hearings sued, but so
have individuals objecting the revocation of title deeds and the demolition of buildings –most
recently those built on riparian reserves. Yet, it is clear that the Act, premised on Article 47 of
the Constitution of the Republic of Kenya is the most effective route for people who intend to
achieve fair administrative justice. Moving forward, citizens should become more aware of what
ought to be done with regards to administrative action, and remain committed to ensuring that
the same is done in a manner that is in convergence with Article 47.

BIBLIOGRAPHY

1.Migai Aketch, Administrative law

2.Peter Kaluma, Judicial Review

3.Constitution

4.H.W.R. Wade, Administrative law

5. Fair Administrative Act 2015