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JUDICIAL REVIEW NOTES

LECTURE ONE
Introduction
Purpose of Judicial Review
● To introduce learners to the principles and practice of judicial review of
Administrative,legislative and judicial actions,inactions, process and
decisions in Kenya.
● Judicial Review is a court based redress(grievances resolution mechanisms)
● It belongs to a branch of law known as public law
● It can challenge decisions made by private and public bodies
Expected learning outcomes.
Learner should be able to utilize acquired knowledge,gained understanding and
skills acquired to carry out the following:
a) Explain the nature, genesis, history, scope and functions of judicial review.
b) Identify and analyze common law grounds and procedures for instituting and
prosecuting judicial review as well as describe specific remedies available
under English common law.
c) Elaborate constitutional and statutory grounds for seeking judicial review in
Kenya.
d) Describe judicial review procedures and remedies available under the
constitution of Kenya and applicable legislation.
e) Appreciate and demonstrate the annex between judicial review under
common law and judicial review under the constitution of Kenya and
National legislation.
f) Evaluate constitutional, philosophical and statutory foundations of judicial
reviews under English law.
g) Critique the relationship between judicial review and other public law
remedies in Kenya.
h) Distinguish between supervisory judicial review and administrative review
of actions, inactions and processes in Kenya.

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i) Distinguish between judicial review and other court processes which entail
review of decisions /judgments namely appeals. (appeallate court will not
only be supervisory, but can also vary, review or merit)
j) Evaluate recent developments and reforms relating to judicial review in
Kenya.
k) Undertake a comparative judicial review in Kenya and selective jurisdictions
(UK) Fair Administration Act 2015.section 5,6,7,8 and 11.It has remedies of
the original common law reliefs. We also have grounds for judicial review
and administrative actions.
l) Distinguish between judicial reviews and administrative, legislative and
judicial processes, actions and decisions.
m) Distinguish between judicial reviews and other processes that entail reviews
of decisions eg. Appeals and appellate reviews.
n) Evaluate recent developments leading to judicial reviews proceedings in
Kenya.
o) Appreciate and discuss various objections to Judicial reviews. (the principal
of due process)
p) Undertake a comparative analysis of Judicial review, principles grounds and
practice between Kenya and selected jurisdiction.

Course content
1. Nature, scope, functions and purposes judicial reviews.
2. History of judicial reviews in England and Kenya.
3. legal and philosophical foundations of Judicial reviews.
4. Judicial reviews under English common law and its application in Kenya.
5. Grounds for seeking judicial review,locus-standi, procedure, reliefs,
jurisdictions(who has jurisdictions to entertain judicial review) and its limits
of judicial review under common law.
6. Judicial reviews under the laws of Kenya.
7. judicial control for administrative action and processes in Kenya.
8. Judicial control for legislative actions and processes in Kenya.
9. Comparisons between judicial reviews and other public law remedies e.g
constitutional review sk)
10.Distinction between supervisory and ordinary judicial reviews.
11.Distinction between judicial reviews and appellate judicial reviews.

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 12.Nexers between judicial review and other public law remedies under the
laws of Kenya. Eg constitutional petitions, commissions of
inquiry(constitutional and statutory inquiries), prosecution.
13.Distinction and similarities between judicial review and administrative
review of actions, inactions, processes and decisions under the laws of
Kenya.
14.Distinction between judicial review and ordinary statutory review. Civil
procedure, order 45 and order 53.The ordinary review is where the court
reviews its own decisions with a view of correcting the decision, varying or
admitting new evidence.
15.Distinction between judicial review and an appellate review of decisions
/judgements
16.Comparative of judgments between judicial review in Kenya and selective
jurisdictions in England.
17.Recent development in judicial review(international and local
developments).
18.Comparative analysis of judicial reviews, of administrative, legislative and
judicial actions in Kenya with those of selected jurisdictions.
19.Recent developments in Judicial reviews in Kenya.
20.Objections to Judicial reviews (philosophical, policy, methodological)
Reference materials
1.Wade, H. W. R and Forsyth C. F..10th edition Administrative law Oxford 2009
2.Craig P. P. Administrative law, 6th edition, sweet and London 2008.
3 Lumumba judicial reviews in Kenya 2006 Lumumba and kaluma
5.Thompson and alem cases of materials on constitution and administrative law
10th edition university press
6.Jones and B. L and library and Thompson Garners administration 2005 Eliot
M.C, Dickinson J and mathews M administrative law:x and materials Oxford 4th
edition.
Laws of Kenya
Constitution of Kenya 2010
Right to fair administrative action act of 2015

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Commission on administrative justice act No. 23 of 2011
Public service (values and principles) Act No. 1A of 2015
States corporations act chapter 446 the laws of Kenya
Public officers No. 4 of 2003
Political parties act No. 14 of 2015
Law reform Act Chapters 26.
laws of Kenya Government proceedings Act Chpt 40.
laws of Kenya Public authorities limitations act chapters 39
Civil procedures act Chapters 21
Limitations of Actions act chapter 22
Public service Commission act No. 10 of 2017
Public procurement and disposal act No. 23 of 2015
County government act of 2012.
Judicature act chapter 8

Nature, scope, functions and purposes judicial reviews.

THE POLITICS OF JUDICIAL REVIEW
● Judicial review is the power of the court, in appropriate proceedings before
to declare a governmental measure either contrary to, or in accordance with
the constitution or other governing law, with the effect of rendering the
measure invalid and void or vindicating its validity".
● Accordingly, judicial review functions either to check the government or
legitimize its actions. From the perspective of democracy, judicial review is
significant for two reasons.
● First, it constitutes a significant means via which individuals can participate
in democratic government.Majority rule, which is the principal method of
democratic governance, does not always ensure the participation of all
individuals in decision-making processes The checking function of judicial

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 review seeks to ensure the participation of all individuals in governance,
since it safeguards their rights and interests whenever they are adversely
affected by governmental action.
● Secondly, judicial review constitutes a significant instrument through which
the courts keep the other branches of government within the limits assigned
to their authority. That is judicial review gives effect to constitutional
principles and checks on governmental operations.
● Administrative excesses must be checked through judicial intervention.
Administrative law relates to decisions of officers or organs of Central
Government or Public Authorities which may affect the rights or liberties of
the citizens and which are enforceable in or recognised by the courts of law."
Judicial Review is an integral component of administrative law.
● The statutory orders of mandamus, prohibition and certiorari are remedies
granted by the High Court to persons injured by the exercise of
administrative or judicial power. Their origins lie in the expansion of the
common law in England and of the jurisdiction of the Court of King's Bench
to acquire superintendence over the observance of law by officials.
● These orders are predicated upon the fact that without law, society cannot
function with fundamental values such as social order, social justice, and
personal freedom. Today, public authorities determine to an overwhelming
extent how much of these values are enjoyed. Their decisions affect vast
numbers of people collectively and individually: ipso facto unlawful
decisions, must be amenable to Judicial scrutiny, hence Judicial Review.
● The social need for law and the protection of legality is vindicated when a
public official exceeds his authority, or acts without any authority, or does
not use his power in the prescribed manner. Certiorari and prohibition issue
to correct or to arrest such a situation. When a public official refuses to act in
the manner prescribed by law, the value is similarly threatened, and
"mandamus" issues to compel performance. The unlawful deprivation of
liberty invites the order of habeas corpus..
● Certiorari derives from the Latin word certiorari, which means to be
certified, informed, appraised or shown. Both in its embryonic days and
today, the order, initially prerogative writ,' was addressed to inferior courts
and required the proceedings of that court to be transferred into a higher
court and examined for validity.
● Prohibition issues to prohibit the assumption of unlawful jurisdiction or
excess of jurisdiction; its function is to prohibit encroachment into

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 jurisdiction and further to prevent the implementation of Orders issued when
there is lack of jurisdiction.
● Mandamus, which is derived from the Latin word "mandare" meaning to
command, is issued in cases where there is a duty of a public or a quasi-
public nature, or a duty imposed by statute; it compels the fulfillment of a
duty where there is lethargy on the part of a body or officer.concerned.
● Although mandamus, prohibition and certiorari remain the tools of Judicial
Review, social values are not protected by these statutory orders alone. Other
remedies are also available to an injured party either alongside, as
alternatives to, or in substitution of these orders. Some of these are an action
for mandamus, declaratory suit, constitutional supervision by the High Court
and an action for damages.
● In a nutshell, Judicial Review is the means by which High Court Judges
scrutinize public law functions intervening as a matter of discretion to quash,
prevent, require, and/or clarify not because they disagree with the judgment,
but so as to right a recognisable public law wrong. This public law wrong
could be unlawfulness, unreasonableness or unfairness.
● In an application for Judicial Review the applicant must be a person with a
sufficient interest (locus standi), and who must commence proceedings
promptly. For instance, if the order sought is certiorari, an applicant must
commence proceedings within six months of any judgment, order, decree,
conviction or other proceeding which is the subject of Judicial Review.

B. A BRIEF HISTORY OF JUDICIAL REVIEW

● Judicial Review is the central feature of administrative public law. It
represents the judiciary seizing the constitutional responsibility of curbing
abuse of executive power. It is a special supervisory jurisdiction, which the
courts approach in a special way. It is not enough that the court may disagree
with what a public body has done; what must be shown is some recognisable
"public law wrong"."
● In the past, where administrators made decisions injurious to the citizenry,
the existing remedy of injunction was inadequate to deal with injuries
occasioned by administrative excesses. There are two illustrations of
contrasting categories of administrative decisions: one made by a Minister or
officer of a government department which is an interested party to the

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 decision and the other made by an independent administrative tribunal
generally. Within the latter category there are administrative tribunals whose
decisions affect rights and duties between private citizens on the one hand
and a public citizen on the other hand. In some of these the government may
have a financial interest, as in the case of decisions of Industrial Tribunals on
claims to redundancy payments, to which a contribution is made from public
funds. But there are others, such as decisions by Rem Tribunals, which affect
no one but the private citizens who are parties to the dispute. These are not
different in character from decisions made by a subordinate court as to the
terms of a new lease of business premises. Their only difference is that one
is made by an administrative tribunal, the other by a court of law. The only
public interest in each is that justice should be done between the private
citizens who are parties to a dispute in which they are compelled by law to
submit to a particular tribunal not chosen by themselves.
● Forums domesticum with internal rules and regulations also existed. When
one accepted to be a member of such a forum, for instance, a club or church,
one had to submit to the rules relating to membership, meeting punishments
and expulsions. The bodies attempted to immunize themselves from judicial
scrutiny through finality clauses. However, in time, this necessitated judicial
inquiry through "certiorari".
● Administrative law in England has a long history, but the subject in its
modern form did not begin to emerge until the second half of the
seventeenth century. A considerable number of its basic rules can be dated
back to that period, and some, such as the principles of natural justice, are
even older.
● Judicial Review has always been treated as an arm of administrative law and
this has necessarily been so because Judicial Review is meant to keep
administrative excesses in check.
THE NATURE OF THE 1977/81 CHANGES
● Judicial Review developed from the ancient prerogative writs." All writs are
in form of commands issuing in the name of the crown, but only writs that
were conceived as standing in a special relationship with the crown came to
be regarded as Prerogative Writs."
● The modern, unified process is regulated by Order 53 of the Rules of
Supreme Court (introduced in 1977), and section 31 of the Supreme Court

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 Act of 1981, though there is still room for the courts' inherent jurisdiction.
The 1977/81 regime was seen:
1) (4) to have removed old technicalities and disadvantages which faced
the (would be) applicant; but (6)
2) to have retained important safeguards protecting the (would not be)
respondent.
● This dual insight formed the platform for the exclusivity rule." As Lord
Diplock observed:"the main purpose of the new Onler 53 was to sweep away
the old procedural differences including in particular, differences as to locus
standi, to substitute for them a single amplified procedure for obtaining all
forms of relief, and to leave the court a wide discretion as to what
interlocutory directions, including orders for discovery, were appropriate to
the particular case,’’
● The procedural disadvantages under which applicants for this remedy
laboured remained substantially unchanged until the alteration of Order 53
in 1977. Foremost among these was the absence of any provision for
discovery. Another handicap under which an applicant for a prerogative
order under Order 53 formerly laboured under was that a claim for damages
for breach of a right in private law of the applicant resulting from an invalid
decision of a public authority could not be made in an application under
Order 53. Declarations or injunctions were obtainable only in actions began
by writs or originating summons.
● The safeguards built into the Order 53 procedure which prevents public
authorities on whom Parliament has imposed a duty from making public law
decisions from harassment include: "the requirement of a prior application
for leave to be supported by candid affidavits verifying the facts relied on is
an important safeguard against groundless and unmeritorious claims that a
particular decision is a nullity... further... the requirement that leave to apply
for certiorari to quash a decision must be made within a limited period after
the impugned decision was made.’’
● The adoption of the new procedural regime in 1977 was said neither to have
extended nor diminished substantive law. In the words of Lord Scarman:
"The application for Judicial Review is a recent procedural innovation in our
law: It is governed by Rules of Supreme Court, Order 53, rule 2 which was
introduced in 1977. The law made no alteration to the substantive law; nor
did it introduce any new remedy."

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● However, the 1977/81 regime saw some procedural changes. The fin relates
to exclusivity. Since exclusivity is a procedural rule, it could attach to the
1977 Rule changes, prior to statutory backing. The second change regards
liberal standing. The nature of this change is illustrated in relation to
declaratory relief in the case of R v Inland Revenue Commissioners ex parte
Nation Federation of Self-Employed and Small Businesses Limited" where
Lord Scarman observed: "Before the introduction of the new Order 53... a
declaration could not be obtained by a private citizen unless he could show
(as in a claim for an injunction) that a private night of his was threatened or
infringed. The new order has made the remedy available as an alternative, or
an addition, to a prerogative order. Its availability has, therefore, been
extended, but only in the field of public law where a prerogative order may
be granted."
● The changes made in the procedure introduced in 1977 by Rules of Supreme
Court Order 53 for Judicial Review were first given statutory authority by
primary legislation in section 31 of the Supreme Court Act of 1981. Thus the
purpose of section 31 is to regulate procedure in relation to Judicial Review,
and not to extend the jurisdiction of the court.
● The procedure outlined in the foregoing paragraphs remains to date the
avenue for seeking redress in the realm of Judicial Review under English
Law.

JUDICIAL REVIEW IN KENYA

● In Kenya, Order 53 of the Civil Procedure Rules governs the procedure for
applications of prerogative orders. The prerogative orders that are issued
under Order 53 are mandamus, prohibition and certiorari.
● The statutory authority for the orders of mandamus, prohibition and
certiorari is the Law Reform Act." The relevant sections of the Act (which is
a composite Act also dealing with other unrelated matters), are sections 8
and 9.
● The Law Reform Act does not set out the forms of the proceedings in
relation which regulates the procedure for applications for these orders is
likewise under which these orders are sought. Order 53 of the Civil
Procedure Rules hers ex pas silent and there are no forms prescribed by it
which are to be found in the where Lo Appendices of Forms that follow the

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 Civil Procedure Rules. However, the Court of Appeal has ruled specifically
on the matter of form. In Farmers Bus Service Transport Licensing Appeals
Tribunal, the court said:"There is no material difference between the rules
relating to prerogative writs in force in Uganda and those in force in Kenya.
The ruling in Mohamed Ahmed case therefore applies in Kenya."
● In the Mohamed Ahmed case the principles governing the form to be used
were set out by Sir Newham Worley as follows: "This recital reveals a series
of muddles and errors which is not unique in Uganda and is attributable to
laxity in practitioners offices and in some registries of the High Court. The
appellant's advocate appears to have failed entirely to realize that prerogative
orders, like the old prerogative writs, are issued in the name of the crown at
the instance of the applicant and are directed to the person or persons who
are to comply therewith. Applications for such orders must be instituted and
served accordingly. The crown cannot be both applicant and respondent in
the same matter.’’
● An application for leave to commence Judicial Review proceedings should
be made by chamber summons to a judge in chambers. This is consistent
with the requirement of ex parte applications in chambers."
● Once leave to apply has been obtained the substantive application is
governed by Order 53, rules 3 to 7. The application at this second stage is
made by notice of motion to the High Court. The proceedings at this stage
are inter parties and service of the notice of motion must be made on persons
directly affected."
● In general, Judicial Review will lie against anybody charged with
performance of a public duty. With time, however, there have been
developments that have brought even domestic tribunals within the amber a
Judicial Review.
● It is also important to note one aspect of Judicial Review in Kenya emerges
from the foregoing discussion, that the English heritage of Kenya law on
Judicial Review still has a major impact which must always be take into
account

The Nature and Scope of Judicial Review

● Essentially, judicial review is a power of the courts to countermand the
decisions of the elected branches of government, for example, because they

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 contravene the constitution." The idea behind judicial review is to forestall
unchecked power even when that power [is] lodged in a democratic
majority" To enable courts to exercise this power, constitutions in liberal
democracies typically establish a set of principles, values and rights that are
inviolable, in that they cannot be changed through ordinary political
processes."
● In this scheme, the judiciary becomes a "countermajoritarian mechanism that
safeguards such principles, values and rights against the temporary whims of
the majority." Further, to enable the judiciary to perform this role effectively,
such constitutions endeavor to insulate judges from political pressures, by
giving them security of tenure for example, and protecting their
remuneration and benefits from unfavorable variation.
● Nevertheless, judicial review is a controversial power because it enables un-
elected judges to undo the decisions of the branches that are theoretically the
most responsive to the people." Whenever judges exercise this power, they
won't be accused of thwarting the will of the majority by their ‘judicial
activism.’ As Alexander Bickel has observed in the American context, when
a court declares legislative acts of the elected executive unconstitutional, it
wants the enforcement of acts that presumably reflect the will of the voters.
Thus, judicial review "necessarily invites conflict with the political branches,
a problem that Bickel termed the "countermajoritarian difficulty." This
problem poses two challenges for the courts. First, how can the courts
compel a disapproving executive or legislature to comply with its
determinations, given that it possesses neither the power of the sword nor the
purse?" Second, how can the courts safeguard the legitimacy of their judicial
review decisions, given that illegitimate decisions can ``invite intense
conflict within the nation?"
● For courts to respond effectively to these challenges, they have been asked
to adopt a minimalist approach to judicial review. Thus, Bickel thought that
the Supreme Court of the United States ought to stay its hand " in response
to controversial constitutional questions." He reasoned that this approach
would protect the judiciary from potential backlash by the political branches,
and encourage constitutional dialogue within the other branches and the
public." In a similar vein, Cass Sunstein has asked courts to strive to make
decisions that are narrow, in the sense of being no broader than necessary to
resolve the cases at hand. Like Bickel, he takes the view that such
minimalism goes hand in hand with democratic deliberation.

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● However, those opposed to a minimalist approach to judicial review argue
that it is not suitable for protecting the permanent values expressed in a
constitution. According to this view, a 'more searching judicial inquiry' is
necessary in the face of 'laws that violate rights that are preconditions for a
functioning democracy and that uniquely prejudice groups that may be
excluded from the democratic process. Factors such as minority status,
popular prejudice and historical subordination may cause some members of
society to be denied effective political voice.Where those in power violate
the rights or fail to consider the interests of such groups, the courts become a
forum where they can obtain effective voice within the political process.
Judicial review is therefore a check on majority power. By serving as a
countermajoritarian institution, judicial review can ensure that minorities
remain part of the system, bolster legitimacy, and save democracy from
itself. Further, proponents of this view contend that since judges have
security of tenure, they are less likely to be driven by political expediency,
and are more capable than any other institution in government to articulate
broad principles of law to guide the other branches of government and
society as a whole. In their view, although minimalism may have the
advantage of keeping courts out of many political disputes, it can be
'problematic because it offers no guidance to the other branches about what
is and is not permissible.``
● Irrespective of whether they have adopted a minimalist or an activist
approach, courts in common law jurisdictions have established three
principal, and related, doctrines by which they determine whether or
not they will adjudicate disputes. These doctrines, which in principle-
ought to enable courts to stay within the bounds of their authority as
dictated by the separation of powers doctrine, are justiciability,
standing, and political question. As can be expected, courts have applied
these doctrines differently, depending on whether they favor a minimalist or
activist approach, and depending on the unique historical, social, economic
and political circumstances that prevail in their countries.
● The doctrine of justiciability holds that judicial power is to be exerted only
in respect of justiciable matters."" A matter is justiciable only if the
following elements are met: (1) the matter is of a legal nature, in the sense
that it affects a person’s recognized legal rights or relations; (ii) the violation
alleged by the person making it has injuriously affected that person's legal

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 rights or relations by inflicting or threatening, actual harm:and and (iii) a
judicial remedy is available to redress the violation complained of "
● The doctrine of standing is concerned with the second element of
justiciability, namely, whether the plaintiff is a proper party to request an
adjudication of the legal issues presented before the court." The question is
whether the plaintiff has a "personal stake' in the matter before the court, that
is, whether the plaintiff has sufficient interest in the case to merit the court's
attention." The plaintiff has such a stake if he or she has suffered a concrete
injury, if the defendant's conduct has caused that injury, and if the injury is
redressable. The application of this doctrine therefore means that the courts
will entertain actions in circumscribed circumstances. This doctrine is also
considered useful in the sense that it circumscribes the role that courts play
in the political decision-making process. That is, it brings into the legal
decision-making process precisely those persons who bear the impact of a
decision, and only where their claims are 'ripe,' in the sense that there is
objective evidence of a threat of harm. It therefore prevents courts from
adjudicating hypothetical disputes and 'formulat[ing] rules of law with
speculative ramifications. And it constrains the majority will in a limited
manner since the judicial decisions that result from this process only have a
precedential effect that is limited to other cases involving similar situations."
● However, the emergence of public interest litigation, where individual
cases are used as vehicles for social change, has challenged the
traditional approach to standing" Under this new approach, lawsuits are
initiated both to remedy private harms and to establish precedents that will
govern future cases. This approach is deemed to be problematic because the
non-traditional (or non-injured) litigants seek judicial determinations that
will vindicate their broader, parochial policy goals. Such non-traditional
litigants therefore have a biased agenda, unlike the traditional litigant with a
concrete injury, who 'can be relied upon to present the significant details
which, although directed at eliciting the requested relief, are neutral with
respect to their effect upon the development of precedent.
● Nevertheless, the general approach in the Commonwealth is to encourage
public-spirited individuals and groups to challenge unlawful governmental
sin even though it does not affect them directly. This approach is premised
on the idea that every citizen has a right to question the legality of
governmental actions and to ensure that the law is enforced. This right
suffices to establish 'sufficient interest in cases where governmental action

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 threatens the public interest, especially if denying standing for lack of a
more directly affected plaintiff would result in such action going
unchallenged. Paul Craig captures the essence of this liberal approach to
standing when he writes that:
‘Citizen actions should exist, particularly in those areas where a large
number of people are equally affected by governmental irregularity, but in
which no person is singled out. To deny access in such a case seems
indefensible. If the subject matter of the case is otherwise appropriate for
judicial resolution, and the application is timely or ripe, to erect a hammer of
"no-standing" would be to render many important areas of governmental
activity immune from censure for no better reason than that they do affect a
large number of people.’
● The political question doctrine, on the other hand, deals with the two other
elements of justiciability. It recognizes that certain constitutional commands
are not enforceable by the courts because they clearly fall outside the
conditions and purposes that circumscribe judicial action." They are called
political questions because they impose political, rather than legal, duties.
Accordingly, their violations are to be resolved, not by judicial remedies, but
by the political process. The doctrine therefore makes a fundamental
assumption that the political process will resolve those questions designated
political. As Jonathan Siegel has argued, however, this faith in the political
process is often misplaced." For example, it is assumed that the people can
always vote offending politicians out of office where the political question
doctrine blocks a judicial remedy. In Siegel's opinion, however, the
suggestion that citizens could use the electoral process to redress
non-justiciable constitutional grievances is often entirely impractical."
According to him, the typical issue that causes a citizen to seek judicial
review is simply not of sufficient importance; no substantial number of
voters could ever be expected to cast their votes based on it. It is therefore
untenable to suggest that a substantial number of voters could ever be
expected to cast their votes based on rather obscure issues that would not
likely have much, if any, resonance with actual election campaigns. Further,
'attempting +50 to use the electoral process to redress a constitutional
grievance would obviously require a tremendous investment of time, effort,
and resources, probably orders of magnitude beyond the investment
necessary for litigation." In any case, the electoral process is majoritarian,

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 meaning that "the majority might like a candidate best precisely because of
the candidate's willingness to ignore constitutional constraints on
majoritarianism." Alternatively, a citizen aggrieved by legislative or
executive action could seek recourse in the political process, by agitating for
change through legislation." However, this option is fraught with the same
challenges that arise in the electoral process. In particular, the political
process is equally 'majoritarian in nature and can hardly be expected to serve
as a good enforcement mechanism for those constitutional provisions that
are intended to restrain majoritarianism."
● As I see it, Siegel's essential point is that courts should not simply assume
that a matter deemed political would be resolved in the political branches,
and should, instead, assume jurisdiction where they consider that offending
governmental action would otherwise not be redressed. So that courts should
not avoid reviewing decisions merely because they have been debated and
approved in the legislature, or relate to important policy matters the
executive is pursuing."
● At any rate, in interpreting constitutions, the courts are meant to sift
justiciable matters from the non-justiciable (or political questions), and to
refer the latter to the political departments for resolution. In the United
States, the courts consider a number of factors in determining whether a
matter is non-justiciable One such factor is whether the text of the
constitution 'demonstrably' commits its resolution to another branch of the
Government. For example, the US constitution entrusts the President with
unrestricted discretion in matters such as choosing whom to nominate to the
Senate for confirmation as executive branch officers." A second factor is
whether there are judicially discoverable and manageable standards for
resolving the matter." A third factor is whether it is impossible to decide the
matter without making an initial policy determination of a kind clearly
meant for non- judicial discretion. A fourth factor is whether it is impossible
for the court to undertake independent resolution of the matter without
expressing lack of respect for the other branches of government. A fifth
factor is whether there is an unusual need for questioning adherence to a
political decision already made. A final factor is the potential that
multifarious pronouncements by various branches of government on one
question would be embarrassing.
● Nevertheless, there is no precise test for when courts in the US should find
questions political, with the result that the application of this doctrine has

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 sparked controversy. As is evident from the above five Baker factors, the
political question doctrine is based not only on constitutional considerations
(for example, whether the constitution has committed the issue to a
coordinate political department), but also prudential considerations (for
example, whether it is impossible to decide the matter without an initial
policy determination of a kind clearly for son-judicial discretion) According
to one theory, only the constitutional considerations count, and courts should
not abdicate their role for prudential reasons On a contrasting theory,
however, the political question doctrine permits the courts to decline to
adjudicate cases for prudential reasons as well." In practice, the Supreme
Court has sometimes invoked both constitutional and prudential factors
finding a case to be a political question without clearly stating which factors
are adaptive. In the final analysis, whether a case raises a political question
or not is to be determined on a case-by-case basis.
● Outside the US, the political question doctrine has been criticized for
making the unrealistic assumption that political questions and legal
questions can be separated so clearly that the distinction can form the basis
of practical solutions litigation before the courts. On this view, a doctrine
according to which pol cal questions are immunized from judicial review
cannot work, because legal rules and their content are determined by the
dynamics of politics, in any sense of the word and in all spheres of
government. In the South African contest, for example, it has been asserted
that because the Constitution does not permit the exclusive of any
governmental action from judicial review, it would be unwise to introduce a
political question doctrine to South African law in order to immunize
so-called political policy-making from judicial review" So that the preferred
approach as South Africa is that 'policy and policy making are not subjected
to judicial control before implementation, unless circumstances prevail when
the implementation has become irreversible and its implementation could
cause material and irreversible harm Accordingly, the South African
Constitutional Court has demonstrated a willingness to subject matters of
high policy and executive action to judicial review, reasoning that the rule of
law requires that the exercise of public power by the executive and other
functionaries should not be arbitrary, and that governmental decisions must
be rationally related to the purpose for which the power is given Similarly in
England, all powers, including the so-called prerogative powers, are now
reviewable." Here, the prevailing view is that courts have a duty to 't quire

16
 that decisions, including those in the realm of policy, are within the scope of
the relevant power or duty, and arrived at by the standards of procedural
fairness In New Zealand, however, courts have consistently held that matters
preliminary to the making of legislation are non-justiciable, on the rationale
that judicial review should not be used to inhibit the free functioning of
Parliament."
● At any rate, there are categories of decisions that courts may be ill-equipped
to review, due to limitations inherent in their institutional capacity.
Polycentric decisions constitute perhaps the perfect example. A polycentric
decision is one in- volving the allocation of scarce resources among
competing claims. These decisions may not be suitable candidates for
judicial review because the reallocation of resources in consequence of the
court's judgment will normally involve the in- terests of those who were not
represented in the initial litigation. It is, however, arguable that courts can,
and should, question the rationality or reasonableness of such decisions,
even if, for example, they should not intervene to devise what they consider
to be fairer methods of allocating scarce resources. For example, South
Africa's Constitutional Court has adopted a policy of evaluating the
reasonableness of policies promulgated by the government to facilitate the
realization of social and economic rights in successive cases." For the
Constitutional Court to consider state measures reasonable, 'they must aim at
the effective and expeditious progressive realization of the right in question,
within the states [sic] available resources for implementation. Further, "[t]he
measures must be comprehensive, coherent, inclusive, balanced[d], flexible,
transparent, be properly conceived and properly implemented, and make
short, medium and long-term provision for those in desperate need or in
crisis situations. In Government of the Republic of South Africa v
Grootboom, for example, the Constitutional Court held that the
Government's housing program was unreasonable because it did not make
reasonable provision for those in desperate need of housing."
● A major advantage of this approach is that it facilitates the democratization
of the political decision-making process. Therefore, if the views of any
particular individuals or groups affected have not been sought and included
in the policy-making process, then the government will be required to
accommodate such interests and reconsider its policy. The reasonableness
approach can place onerous demands on government bodies. This approach
ensures that the political branches remain the primary locus of social and

17
 economic policy decision-making, as they should whilst the courts ensure
that the political process respects the right of all citizens to equal
participation in the process of deliberation. This 'democracy strengthening
'role of the courts would be particularly useful in countries such as Kenya
where the political process is all too often "deaf to the voices and rights of
some individuals and groups in society. Further, this approach enables the
courts to avoid undermining their legitimacy by attempting to resolve deeply
polycentric controversies concerning whose needs should receive priority
over the competing needs of other individuals dependent on the same scarce
resources,
● In yet other instances, there are attempts to exclude the jurisdiction of courts
through what are termed ouster or privative clauses. These are legislative
provisions, which can be found either in constitutions or ordinary legislation,
and which 'purport to deprive the courts of their jurisdiction to review
governmental action Courts in common law jurisdictions have typically
declined to defer to such provisions, reasoning that doing so would deprive
the courts of their responsibility to ensure that the government acts only in
accordance with the rule of law." The courts therefore consider access to the
courts to be a fundamental right in a constitutional democracy, on the basis
that 'If courts were to defer unreflectively to ouster clauses, in many
instances the individual who claims her rights have been violated by
governmental action would find herself with no judicial (or other) forum at
all in which to raise her claims"
● The leading case on ouster clauses is the House of Lords decision in
Anisminic Ltd v Foreign Compensation Commission." Here, the
appellant had owned a mining property in Egypt, which was among the
properties of British subjects that the Government of Egypt sequestrated in
1956. A year later, the Government of Egypt authorized the sale of the
appellant's property, and it was sold to an Egyptian organization known as
TEDO. Subsequently, the governments of Britain and Egypt made a treaty in
1959, which provided for the return of their sequestrated property to British
subjects, with the exception of properties sold between 30 October 1956 and
2 August 1958. The accepted properties were listed in an 'Annex E, and
included the property of Sinai Mining, which was the name of the appellant
company before its name was changed to Anisminic. Under the Treaty, the
Government of Egypt paid to the British Government a sum of money,
which was to be used to compensate companies such as Anisminic for the

18
 loss of their Egyptian properties. The compensation was to be made in
accordance with the Foreign Compensation Act of 1950, which established
the Foreign Compensation Commission (FCC) to handle such claims. This
Act contained an ouster clause, which provided that "The determination by
the Commission of any application made to them under this Act shall not be
called in question in any court of law."
● The appellant submitted a claim for compensation, which the FCC denied.
The appellant challenged the FCC's decision in the High Court. This court
ruled in the appellant's favor, holding that the FCC's decision was a legal
nullity and that the FCC must treat the appellant's claim for payment from
the fund as established. The Court of Appeal set aside the judgment of the
High Court, whereupon the appellant moved to the House of Lords. Here,
the issue was whether the courts had jurisdiction to decide the
appellant's case at all, in light of the ouster clause.
● The FCC had based its decision on regulations made under the Act.
According to these regulations, a claim would be established if the applicant
satisfied them that his application related to property in Egypt referred to in
Annex E, that the applicant was either the owner of the property or the
successor in title of such owner. and the applicant and the successor in title
were British nationals. The problem for Anisminic was that its property had
been sold to TEDO by the time it was making this application. Since
Anisminic was the original owner of the property in question, the FCC
interpreted these regulations as requiring them to determine whether TEDO
was Anisminic's successor in title. And since TEDO was not a British
national, they rejected the claim.
● The House of Lords took the view that the FCC had misconstrued the
regulations, holding that a claimant who was an original owner did not have
to prove anything about successors in title." Accordingly, the House of Lords
reasoned that the FCC went beyond their jurisdiction in considering the
matter since they 'made an enquiry which the regulations] did not empower
them to make, and they based their decision on a matter which they had no
right to take into account.According to Lord Reid, a person who was still in
existence, such as Anisminic could not possibly have a successor in title:
there could only be a successor in title whore the title of the original owner
had passed to a successor, so that the original owner could no longer make a
claim." Thus, a successor in title could not make a claim while the original
owner was still in existence. In the circumstances, the House of Lords held

19
 that the FCC had rejected the appellant's claim on a ground that they had no
right to take into account-namely that TEDO was Anisntinic's successor
title-and their decision was therefore a nullity" In defying the outer clause,
the Home of Lords reasoned that when Parliament determined that the
decisions of the FCC could not be questioned in a court of law, it did not
intend that the FCC could make legally erroneous determinations, because
that would suggest that Parliam tacitly authorized the Commission to violate
the law." This House of Lords decision is therefore authority for the
proposition that a court will defy an ouster clause where the concerned
decision-making authority has done or failed to do something in the course
of its enquiry that makes its decision a nullity, or has given its decision in
had faith, or has made a decision it had no power to make, or has failed in
the course of the enquiry to comply with the requirements of natural justice,
or has misconstrued (even if in perfect good faith) the provisions
empowering it to act thereby failing to deal with the question remitted to it
and instead deciding a question that was not reminded to it, or has failed to
take relevant factors into consideration or based its decision on relevant
factors."
● Where courts have determined that a matter is justiciable, that the plaintiff
has standing, that the matter in question is not a political question, and that it
otherwise has jurisdiction, they still have to determine the extent to which
they should interfere with the offending legislative or executive action In
making this determination, courts often draw a distinction between appeal
and review On the one hand, an appeal seeks to determine the correctness of
a decision through an ment of its substantive merits. A court sitting on
appeal over an agency decision seeks to determine whether the decision
maker in question made a right or wrong decision Conversely, a court
reviewing an agency decision seeks to determine whether the decision was
lawful, or reasonable or procedurally fair" The appeal review dichotomy is
not clear-cut, however, and courts often assess the substantive merits of
legislative or executive decisions. The rationale for such intrusive review is
to fulfill the demands of administrative justice in the particular case"
● In doing so, however, courts must be careful not to assume the role of the
primary decision-maker by determining the merits of the case at hand. They
therefore require standards for reviewing offending decisions that not only
enable them to establish whether administrative justice has not been denied
in the particular case, but also give due leeway for the primary

20
 decision-maker to perform his or her duty. Further, where administrative
justice has not been done in the particular case, the role of the courts is not to
substitute their judgment for that of the primary decision maker; instead,
such a determination simply means that the courts will nullify the decision
and require the decision-maker to make a fresh, lawful, reasonable or fair
determination. The Wednesbury test-named after the English Court of
Appeal's decision in Associated Provincial Picture Houses Ltd v
Wednesbury Corporation - has provided 'the orthodox standard for reviewing
matters of substance such as fact-finding, judgment or discretion. The
Wednesbury test holds that a court should only intervene if a decision is so
unreasonable that no reasonable body could come to it. As we saw in
Chapter 2, however, the Wednesbury test is a stringent one, and only permits
courts to interrogate decisions that are irrational in the extreme, but which
are typically uncommon in the ordinary course of public administration. The
Wednesbury test is therefore 'highly deferential, meaning that a court apply-
ing it will in most cases give the benefit of the doubt to the primary
decision-maker.
● The Wednesbury test is unsuitable if courts are to safeguard administrative
justice in the ordinary course of public administration. For this reason, some
ad- ministrative law scholars have suggested that courts should adopt a
variegated standard (or sliding scale) of review, under which the intensity of
review would vary depending on factors such as the nature of the rights at
stake, the importance of the decision to those it affects, and decision-making
context. For example courts would be required to undertake increased
scrutiny where human rights are at stake. The idea is that the graver the
impact of a decision upon the individual affected by it, the more intense the
judicial review. By this logic, it is arguable that courts should adopt a similar
approach where the fundamental values of a constitution, such as the rule of
law, are at stake, even if individual rights are not threatened. As we saw in
Chapter 2, English courts have, for example, moved in this direction, and
now apply the test of whether the decision in question is one that is within
the range of reasonable approaches available to the decision-maker. A
similar approach is also evident in New Zealand. Under this approach,
unreasonable decisions would include decisions made in bad faith, decisions
based on incorrect premises, unreasonable or unjustified decisions, where
excessive or inadequate weight has been accorded to a relevant factor," or
illogical decisions (meaning that the means chosen by a decision-maker to

21
 achieve a particular aim are not apt to achieve the aim), or where there is no
logical connection between the evidence and the ostensible reasons for the
decision, or disproportionate decisions (meaning that the means employed to
attain a given aim impose costs on an individual that are out of proportion to
the wider benefit the decision-maker hopes to gain, or where a less
burdensome means could have been employed)." This approach embraces
more decisions- or indicia of unreasonableness' ' - than the Wednesbury test,
meaning that courts can safeguard administrative justice more effectively.
Framed this way. unreasonableness is a dynamic concept, meaning that the
indicia of unreasonableness may be added or subtracted '[a]according to
changes in judicial and social attitudes to delegated decision-makers." Put
differently, this test allows courts to go beyond the patently unreasonable
decisions - for example, a teacher being dismissed because she has red
hair-and examine the less obvious cases where defects in decision-making
can only be discovered by 'significant searching or testing.’

THE SCOPE OF JUDICIAL REVIEW SYNOPSIS

A.Introduction
B. Control of Administrative Action
C. Ultra vires
D. Jurisdictional Error
E. Error of Law-
F. Error of Fact
G. Abuse of Power
H. Relevancy and Irrelevancy
L.Bias
J. Unfair Hearing-
K Procedural Flaw
L. Irrationality
M.Bad Faith

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N. Abridgement of Fundamental Rights
O.Exercise of Emergency Powers and Judicial interference
P. Conclusion

A. INTRODUCTION

In order to understand the scope of Judicial Review, it is important to distinguish it

from other remedies available to aggrieved persons, principally, appeals to higher
Tribunals.

‘Judicial Review, is not an appeal from a decision, but a review of the manner in
which the decision was made’ this was the dictum of Lord Brightman in Chief
Constable of the North Wales Police vs Evans.In the same case, Lord Hailsman of
St Marylebourne said that the purpose of Judicial Review is to ensure that an
individual is given fair treatment by a wide range of authorities, whether judicial,
quasi-judicial or administrative, to which the individual has been subject. It is no
part of that purpose to substitute the opinion of the judiciary or of individual
judges, for that of the authority constituted by law to decide the matters in
question. In R v Chief Justice of Kenya and others ex parte Lady Justice Roselyn
Naliaka Nambuy, the applicant challenged a decision of a tribunal on merits. The
Court held inter alia:"This cannot be a cause of action under Judicial Review
because the Judicial Review jurisdiction does not avail to attack a decision given
on merit by a tribunal. The remedy lies on appeal. The Court while exercising its
Judicial Review jurisdiction does not sit on appeal..."

Unlike Judicial Review, appeal concerns itself with the merits of a decision. When
a matter goes on appeal, the major consideration that will govern the appellate
court on whether to confirm or to disturb a decision is whether the decision in
question is right or wrong on the basis of the law and the facts. Judicial Review on
the other hand concerns itself with the legality of the decision, and the guiding
principle in quashing a decision, is whether that decision is lawful or unlawful.

Another major attribute of Appeal is that it is granted by Statute, that is, unless a
Statute expressly allows appeal, an aggrieved party cannot lodge an appeal against
a decision. Conversely, in matters which are reviewable, the court exercises
inherent powers, which gives it authority to review unlawful decisions.

23
An important distinction exists between Judicial Review and Constitutional
applications and references for enforcement of fundamental rights and
constitutional duties. The Courts at one time took the view that Judicial Review
orders could issue in respect of constitutional applications under section 84(1) of
the Constitution, as the High Court noted in Kamlesh M Damji v R.The Court
stated that:

’’Section 84(2) gives High Court power to issue writs among other orders. Whether
the writs include the former prerogative writs (now orders) including the writ of
prohibition is best left for consideration of the Court later, if the question arises.We
further observe in passing that there is already a precedent in Stanley Munga
Githunguri v R. High Court criminal application number 271 of 1985 where an
under prohibition was issued under section 84(1) of the Constitution.’’

Alan to R v Chairman Electoral Commission of Kenya, the Court held that an

order of mandamus could issue to compel performance of a constitutional duty.
And in R vs Chief Justice of Kenya and other ex parte Lady Justice Roselyn
Nalaka Nambuye, the question arose as to whether Judicial Review can be used to
challenge constitutional power. The applicant had challenged the power of the
President and the Chief Justice in respect to section 62 of the Constitution. The
Court held in the negative, per Nyamu J. ‘‘regards the Chief Justice, the exercise of
presidential powers under the Constitution cannot be challenged by way of Judicial
Review at all because Judicial Review jurisdiction is derived from an Act of
Parliament and is not entrenched in the Constitution unlike India and the United
States where Judicial Review jurisdiction has been specifically conferred under the
respective tutions In Kenya the jurisdiction is statutory"

The Court further noted that the application was incompetent as the applicant had
brought only a Judicial Review application seeking constitutional remedies and
reliefs. The proper procedure would have been to bring separate applications for
Judicial Review and constitutional law reliefs.

It is thus apparent that in Kenya, Judicial Review is subject to the Constitution.It is

also noteworthy that the Judicial Review jurisdiction of the High Court is distinct
from the constitutional jurisdiction, and Parliament has provided for specific rules
governing constitution references. Thus, while Judicial Review applications are
brought to court through Onder 53 of the Civil Procedure Rules, constitutional

24
application come under the Constitution of Kenya (Protection of Fundamental
Right and Freedom of the Individual) Practice and Procedure Rules of 2001"

B. CONTROL OF ADMINISTRATIVE ACTION

The nature of Judicial Review can be best understood by appreciating the character
of administrative decisions or functions, which are the subject matter of Judicial
Review. Administrative functions may be divided into a number of broad
categories, namely ministerial, administrative, legislative, judicial and
quasi-judicial

Ministerial functions belong to the province of administrative law because

ministers are empowered to implement government policies through the exercise of
discretionary powers. In the course of exercising such powers, a minister may act
in excess of authority bestowed, to the detriment of an individual or institution. For
this reason, an aggrieved party must have a remedy.

Administrative-cum-legislative powers or decisions also form the subject-matter of

Judicial Review. Ordinarily, courts of law are not entitled to go behind legislation
unless such legislation offends the Constitution and can therefore be declared null
and void for want of conformity with the Constitution. However, where legislation
allows for delegation of authority such delegated or subsidiary legislation must be
in conformity with the parent statute, and if not, it will be amenable to Judicial
Review.

Quasi-judicial power refers to the exercise of powers, which are

fundamentally judicial, but without the usual trappings of an ordinary trial
such as strict compliance with rules of procedure and rules of evidence.
Proceedings in Licensing Boards, Tribunals, Universities and even schools in this
category and are amenable to Judicial Review, if they occasion legal injury.The
case of Elizabeth Wainaina and others v The Board of Governors of Pangani
Girls High School is germane. In the case, the High Court quashed the decision of
the Board of Governors of Pangani Girls School indefinitely suspending the three
applicants. The applicants, Elizabeth Wainaina, Georgina Thige and Violet Nzilani
had contended that the Board suspended them unlawfully and without due regard
to the principles of natural justice, in particular that they had been condemned
unheard. The Court, before finally finding in their favour, took time to deal with

25
the issue touching on the jurisdiction of the Court to entertain matters of this
nature. Mbogholi J said:

‘’On my part I have considered the submissions by both learned counsel and the
cited authorities. Breach of the rules of natural justice has been alleged Breach of
procedure under the Education Act has been alleged. Breach of rights of the
individuals (the applicants) has been alleged. Is it right for the court to close the
door of corridors of justice against the applicants without examining these
allegations? Pangani Girls' School is not a private club where deliberations and
action taken against members may be said to be an in-house matter. In my
judgment after considering the relevant material before me and weighing one thing
against another I find that the court has jurisdiction to deal with this matter.’’

In subsequent cases the High Court has ruled that it has jurisdiction to entertain
decisions of administrative bodies. In the case of Michael Omole Ochare and
others vs The Council of Legal Education," the applicants were holders of law
degrees from universities in India. They applied to be admitted to the Kenya
School of Law but the respondent institution refused to admit them to the School.
The applicants went to court seeking an order that the respondent's decision
denying them admission to the Kenya School of Law be quashed and that the
respondent be ordered to admit them. They contended that the respondent had
failed to give them a hearing before denying them admission. The Court, while
conceding that the respondent had been in breach of the rules of natural justice,
nevertheless declined to order their admission, but directed that the respondents
reconsider the applications. In the words of Mbogholi-Msagha J:

"The fact that the applicants were not given a hearing does not mean that they
qualify for admission.’’

The applicants in the Ochare case relied heavily on an earlier case of Rita Biwott
vs Council of Legal Education" where the court was called upon to decide the
applicant's fate under similar circumstances. In that case the applicant after
obtaining a Bachelor of Arts degree from McGill University Montreal, Quebec in
Canada, was admitted for a degree of Bachelor of Laws at the University of
Edinburgh. She was exempted from one year of study in recognition of the course
and examinations passed by her in her first degree.The course for the Bachelor of
Laws Degree therefore took two years. The applicant's application to be admitted
to the Kenya School of Law was rejected on the ground that the Council did not

26
approve her two year degree at the University of Edinburgh under section 13(1) of
the Advocate Act." In finding for the applicant, the High Court ruled that she had
not been given a hearing before her application was rejected and thus there was a
breach of the rules of natural justice. The decision of the Council was quashed and
the principal of the Kenya School of Law ordered to admit her into the school.

It is understandable that Parliament should want to exclude from the ponderous and
expensive procedures of courts of law the determination of disputed facts upon
which administrative decision which affect the rights or duties of individual private
citizens are based, but blanket immunization of administrative action from judicial
scrutiny is equally undesirable if the rule of law is to thrive.

In theory, new legislation which creates new rights, could be secured by confining
its interpretation to administrative tribunals to the exclusion of the courts of law.
This was the theory which lay behind the "no certiorari" clauses which were a
common feature of earlier legislation by which administrative tribunals were set
up. But the theory is unsound. No legislation which confers upon an administrative
tribunal power to decide whether an individual private citizen is entitled to a night
or subject to a duty can be self- contained. For its decision to be effective, means
must be provided for enforcing those rights or duties; and any steps taken to
enforce them necessarily bring them under the scrutiny of a court of law.

When the enforcement of a decision of an administrative tribunal comes before a

court of law, either because the Executive has neglected to enforce it or because a
private citizen contends that its direct enforcement by the Executive is an
infringement of his legal rights, the court is necessarily confronted with the inquiry
as to whether the decision was one which the relevant legislation empowered the
tribunal to make or not. In general, Judicial Review exists for the purpose of
supervising public bodies through control of administrators and restraint of abuse
of power. In R Criminal Injuries Compensation Board, ex parte Lain" Lord Parker
CJ said:

"The only constant limits throughout were that it was performing a public duty we
have it seems to me reached the position when the ambit of (Judicial Review) can
be said to cover every case in which a body of persons of a public as opposed to a
purely private or domestic character has to determine matters affecting subjects
provided always that it has a duty to act judicially."

27
Counts of law may therefore intervene through Judicial Review in any the
following circumstances:

1. when a body acts ultra vires.

2. when there is a jurisdictional error.
3. when there is an error of law
4. where there is an error of fact.
5. when there is an abuse of power.
6. when irrelevant considerations governed the making of a decision.
7. when there is bias
8. when there is an unfair hearing.
9. when there is a procedural flaw.
10.when there is irrationality.
11.when there is bad faith.

It is obvious from a reading of the above that there is plenty of overlapping. For
this reason Lord Diplock opted to classify all of them in three divisions. These are:
illegality (unlawfulness), rationality (unreasonableness)and procedural impropriety
(unfairness) The three limbs are neither exhaustive nor mutually exclusive. To
quote Lord Diplock in extenso;

"Judicial Review has I think developed to a stage today when…one can

conveniently classify under three heads the grounds upon which administrative
action is subject to control by Judicial Review.The first ground I would call
‘illegality’, the second ‘rationality’ and the third ‘procedural impropriety’.That is
not to say that further development on a case by case basis may not in course of
time add further grounds but to dispose of the instant case, the three already well
established heads that I have mentioned will suffice. By ‘illegality’ as a ground for
Judicial Review, I mean that the decision-maker must correctly understand the law
that regulates his decision-making power and must give effect to it. Whether he has
or not is par excellence a justiciable question to be decided, in the event of dispute,
by those persons, the judges, by whom the judicial power of the state is
exercisable. By ‘irrationality’ I mean what can now succinctly be referred to as
"Wednesbury unreasonableness’. It applies to a decision, which is so outrageous
in its defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could have arrived at it.Whether
a decision falls within the category is a question that judges by their training and
experience should be well-equipped to answer, or else there would be something

28
badly wrong with our judicial system. I have described the third head as procedural
fairness towards the person who will be affected by the decision. This is because
susceptibility to Judicial Review under this head cover also failure by an
administrative tribunal to observe procedural rules that are expressly laid out in the
legislative instrument by which jurisdiction is conferred even where such failure
does not involve any denial of natural justice.

C.ULTRA VIRES

Traditionally, ultra vires was the main ground for the issue of the orders of
certiorari, mandamus and prohibition. Ultra vires means two things. First, that a
body has done an act which it has no capacity to do. Secondly, that the body in the
course of exercising its authority has done an act without following the prescribed
procedure or has failed to observe principles of natural justice.

The simplest example of ultra vires is where an Act of Parliament confers limited
power on a public body, and the body purports to exercise them but ignores the
limitations. It is helpful to extend this logic in two ways, to include:

1. any incompatibility with the dictates of Parliament; and

2. the dictates of any legally recognised and superior source of power.

A number of scenarios then slot into place, ranging from Judicial Review of
primary legislation for incompatibility with rules.

The term ultra vires is sometimes used as a single umbrella for most, or indeed all
grounds for Judicial Review. Two factors encourage this. First, the fact that any
public wrong can in some sense be characterized as an excess of power (just as it
can be termed an abuse of power). Secondly, the traditionalist desire to justify
intervention on the basis of what Parliament intended, did not intend, cannot have
intended or is presumed not to have intended. This was illustrated in Ridge vs
Baldwin, in which Charles Ridge Chief Constable of Brighton Police was
prosecuted on conspiracy and corruption charges and, though acquitted, the trial
judge made adverse comments about his leadership. Under the Municipal
Corporations Act of 1882 section 191 which provided that the Watch Committee
"may" dismiss any "constable whom they think negligent in the discharge of his
duty or otherwise unfit for the same". The Committee dismissed Ridge. On appeal

29
to the Secretary of State, whose decision was "final and binding" under the Police
Appeals Act of 1927 section 2, the dismissal was upheld. Anxious to secure
pennon rights, Ridge commenced writ proceedings for a declaration that the
dismissal was void. The House of Lords held that the declaration would be granted.
The Committee had breached a duty of natural justice applicable under common
law and/or a procedural code Regulations. Its decision was therefore void and
could not apply.

The problem of ultra vires was also dealt with by the Court of Appeal in
Associated Provincial Picture Houses Limited v Wednesbury Corporation. APPH
were the owners of the Gaumont Cinema in Wednesbury.They applied for a licence
to give Sunday performances. Under the Sunday Entertainment Act of 1932 section
1(1) the licensing authority had power "to grant licences subject to such conditions
as the authority thinks fit to impose.’’ The licence was granted subject to a
condition that "no children under the age of fifteen years shall be admitted to any
entertainment, whether accompanied by an adult or not. APPH applied for a
declaration that the condition was ultra vires and unreasonable. It was held that this
was not "a condition which no reasonable authority, acting within the four corners
of their jurisdiction, could have decided to impose". The court said:

"It is true the discretion must be exercised reasonably. What does that mean... It is
frequently used as a general description of the things that must not be done. For
instance a person entrusted with a discretion must direct himself properly in law.
He must call his own attention to the matters which he is bound to consider. If he
does not obey those rules, he may truly be said, and often is said, to be acting
unreasonably.Similarly you may have something so absurd that no sensible person
could ever dream that it lay within the powers of the authority Werrington LJ. I
think it was, gave the example of the red-haired teacher. dismissed because he had
red hair. That is unreasonable in one sense. In the other sense, it is taking into
consideration extraneous matters. It is so unreasonable that it might almost be
described as being done in bad faith. In fact all those things largely fall under one
head."

It is to be noted however, that mere variation in wording between an Act of

Parliament and Regulations may not necessarily render the later alia vires. An
illustration of this was in Abeid v Badbes" on whether the issue was variation
between the wording of Act and the wording of the Regulations made thereunder
rendered the form (in the Schedule) ultra vires. The conflict was in section 4 of

30
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act of 1965,
and Regulation 4 of the regulations made thereunder. The Court held that the form
was not ultra vires as it contained all that was required under the Act and
Regulations, which were directory.

D. JURISDICTIONAL ERROR

The concept of "jurisdiction" is notoriously elusive, mainly because it conveniently

provides:

1. an umbrella term for describing grounds generally:

2. "mask grounds’’ and
3. accessto the language of "nullity" (allowing statutory ouster to be
circumnavigated).

Where none of this enterprise is necessary, Jurisdictional error may assume a more
innocuous (and narrow) form.

The term jurisdiction has been used to justify or warrant hard-edged intervention in
situations where a body erroneously purports to exercise a jurisdiction which it
does not possess or declines to exercise one which it does. The point of asking
whether an error "goes to jurisdiction" is to decide not whether it is reviewable, but
whether it is correctable.

Judicial Review will lie where an inferior court or tribunal or public body has acted
without or in excess of its jurisdiction. Such bodies must not act outside their
powers. They must abide by any Jurisdictional conditions, and follow prescribed
procedures, and cannot delegate except as expressly laid down. In making its
decision, such a body must not ask itself the wrong questions, and it must not take
into account matters which it has not been directed to take into account. Any order
must be one which it has jurisdiction to make.

The landmark case that explains jurisdictional error is Anisminic Limited v

Foreign Compensation Commission. Anisminic was an English Company which
had owned a mining property in Egypt. As a result of the Suez Crisis the property
was occupied by Israeli forces and then Egyptian Government Anisminic obtained
($0.5 million pound "sale" of its property to an Egyptian organization called
TEDO.Under a treaty, the Egyptian Government paid the UK Government 27.5

31
million pounds compensation for property claims by UK nationals. The FCC was
the body empowered to manage this fund, in accordance with the Foreign
Compensation Act of 1990 and a 1962 Order in Council. By article 4 of the Order
it was provided that FCC "shall treat a claim as established" if fed that the
applicant was "the owner" of the relevant property or the ccessor inside of such
person". The FCC rejected Anisminic's claim on the basis that TEDO was its
"successor in title", and as such it was not of British nationality and so the claim
did not comply with the terms of the relevant delegated legislation. The House of
Lords held that FPCC had misconstrued article 4, in such a way that its
determination was a "nullity" and so not covered by section 4(4) of the Act which
provided that FCC's determination of any application "shall not be called into
question in any court of law'' It had made an erroneous inquiry, departed from its
mandate and made a decision outside "its permitted field"

In cases of jurisdictional error, the inherent powers of the court may be invoked to
ensure that the body concerned if it failed to exercise jurisdiction which it has, is
compelled to do so by way of mandamus, and in cases where the body did not have
jurisdiction, the resulting decision is quashed by way of certiorari

E.ERROR OF LAW

A reviewing court may intervene to correct a fundamental error of law made by an

administrative tribunal, or an inferior court going to the jurisdiction or appearing
on the face of the record or constituting a fundamental direction the effect of which
is to make the resulting decision destitute of Legality.

By illegality" is meant that the decision-maker must correctly understand the law
that regulates their decision and must give effect to it. Whether they have or not is
"par excellence" a justiciable question to be decided, in the event of dispute, by
judges, by whom the judicial power of the State is exercisable. In Cozens v Brutus
Lord Reid said:

’’The meaning of an ordinary word of the English language is not a question of w.

The proper construction of a statute is a question of law. It is for the tribunal which
decides the case to consider, not as law but as fact, whether in the whole instances
the words of the statute do or do not as a matter of ordinary ge of the English
language cover or apply to the facts which have been proved If is alleged that the

32
tribunal has reached a wrong decision then there can be a question of law but only
of a limited character. The question would normally be whether its decision was
unreasonable in the sense that no tribunal acquainted with the ordinary use of
language could reasonably reach that decision"

Where there is an error on the face of the record, Judicial Review will be even if
the body being reviewed has kept within it's jurisdiction. In the English case of R
Northumberland Compensation Appeal Tribunal ex parte Shaw former employee
claimed compensation on the termination of his employment. Under the relevant
regulations, the tribunal was required to assess the compensation payable by
aggregating two periods of employment. In its decision the tribunal stated that of
the two periods of employment, only the second period should be taken into
account. As the error appeared on the face of the order, the decision was quashed.

The main remedy where there is an error on the face of a record is The reason is
that, unlike the other grounds, a decision containing an error on its face is valid
until quashed by certiorari.

A recent example in Kenya which illustrates errors by a body relates to the

activities of the Rules Committee created under section 81 of the Civil Procedure
Act.The Committee is empowered to make rules which be in conformity to the
enabling statute. Vide Legal Notice 164 of 1992) Committee purported to amend
Order 53 of the Civil Procedure Rules by doing away with the requirement for
leave as a condition precedent to applying for Judicial Review. In doing so, they
did not reckon with the provisions of section 8 of the Law Reform Act '' which is
the enabling statute. This anomalous situation was considered in the case of
Kenneth Matiba vs Attomey-General". where the Court ruled that the acts of the
Rules Committee were ultra vires and therefore null and void to the extent that
they were not in conformity with the enabling statute.

Misdirection also constitutes error of law and also amounts to considering an

irrelevancy.

F. ERROR OF FACT

A decision may be subjected to Judicial Review on the basis of factual matters.

This may arise and be justified if there is an incorrect finding as regards precedent
facts or if there is an irrational conclusion from facts.

33
It is important to appreciate that facts are integral to the making of decisions and
the validity of a decision invariably hinges upon the proper appreciation and
interpretation of facts. Error as to fact may therefore arise in cases where a tribunal
is unreasonable and exercises discretion in a manner that does not give due regard
to the factual circumstances of the case at hand. If a decision is arrived at through
abuse of discretion, then it becomes amenable to Judicial Review.

Judges are cautious about entertaining challenges based on alleged factual errors.
This is because, questions of fact are primarily entrusted to the public
decision-maker and to reinvestigate them would come close in many contexts to
turning Judicial Review to an appeal on the merits. However, there are important
and developing means by which judges can appropriately interfere in the face of a
fundamentally flawed conclusion of fact. Where the existence or non-existence of a
fact is left to the judgment and discretion of public body and that fact involves a
broad spectrum ranging from the obvious, to the debatable, to the just conceivable,
it is the duty of the court to leave the decision of that fact to the public body to
whom Parliament has trusted the decision-making power save in a case where it is
obvious that he public body, consciously or unconsciously acted perversely.

It is also possible to have an unsustainable conclusion of fact as error of law.It may

be that the facts found are such that no person acting judicially and properly
instructed as to the relevant law could have come to the determination in issue. In
those circumstances, too, the court must intervene. It has no option but to assume
that there has been some misconception of the law and that this has been
responsible for the determination. So there, too, there has been an error in point of
law.

G.ABUSE OF POWER

The term "abuse of power" is an omnibus term, which encompasses improper

fettering of discretion, bad faith, improper motive, frustrating legislative powers,
improper delegation and substantive unfairness, among others. The greatest reason
for the Judicial Review jurisdiction of the court is to ensure that all statute
conferred power is exercised within the confines of the law. A body or a person
may undermine its discretion so that it becomes a prisoner of its own rules which
are not grounded upon any law. This way it shall have abused its powers

34
A licensing Board may, for example, entertain as a rule of practice that it shall only
issue licences to particular persons. In so doing, it will be fettering its discretion in
that it will disable itself from considering each individual application on its own
merits.

H. RELEVANCY AND IRRELEVANCY

It is a basic principle of administrative law that a public body should take into
account all, and only, relevant matters. Failure to do so is a common ground for
Judicial Review. Intervention by a reviewing court is warranted where the relevant
public decision-making body has considered something which it ought to have
disregarded or disregarded something which it ought to have considered. This
principle was aptly captured by Lord Diplock when he said:"It is not for any court
of law to substitute its own opinion for (that of the Secretary of the State); but it is
for a court of law to determine whether it has been established that in reaching his
decision unfavourable to the council he had directed himself properly in law and
had in consequence taken into consideration the matters which upon the true
construction of the act he ought to have considered and excluded from his
consideration matters that were irrelevant to what he had to consider."

Put more compendiously, the question for the court is, did the Secretary of Cate ask
himself the right question and/or take reasonable steps to acquaint himself with the
relevant information to enable him to answer it correctly?

To what extent does the relevancy/irrelevancy ground for Judicial review involve
the court substituting its own judgment? Judicial Review seeks to strike a critical
balance. One way of doing so is to distinguish between different types of
relevance. The first type are matters which must as duty be taken into account, or
left out of account. Identifying these is a ard-edged question for the court. The
second type are those residual matters which may as a matter of discretion be taken
into account, or left out of account subject only to soft review of the decision
whether to do so.``

I.BIAS

The law does not look favorably to situations of bias. Therefore alleged or actual
bias on the part of a public body legitimizes the intervention of a reviewing court.

35
When seized of a matter, the reviewing court investigates the appearance of
partiality and the guiding principle has always been real likelyhood of bias.

Where the decision-maker has a direct pecuniary interest in the matter under
consideration, this is regarded as entitling an applicant (with standing) Judicial
Review. The principle that a person is disqualified from participation in a decision
if there is a real danger that he or she will be influenced by a pecuniary or personal
interest in the outcome, is of g application in public law and is not limited to
judicial or quan-jud or proceeding What will differ from case to case is the
significance of the interest and its degree of proximity or remoteness to the us to be
decider and whether, it is not so insignificant or remote as to be discounted, the
disqualified member has violated his disqualification by participating in the
decision

Like direct pecuniary interest, actual bias is a conclusive visiting t Of course, if

actual bias is proved, that is the end of the case, the pene concerned must be
disqualified." However, in all cases of bias, there a Recourse to the real danger test:

"Having ascertained the relevant circumstances, the count should ask inf whether,
having regard to those circumstances, there was a real danger of bu on the part of
the relevant member of the tribunal in question, in the sense that he might unfairly
regard (or have unfairly regarded) with favour, or disfavour, the case of a party to
the issue under consideration by him."

J. (UN)FAIR HEARING

The extent and scope of common law duty of procedural fairness owed by a public
body depends on all the attending circumstances and includes giving the concerned
party the opportunity to present their case either in person through a duly appointed
agent. It is the law, therefore, that ad arrived at without due compliance with the
requirements amenable to review

The right to be heard is one of the essential characteristics often called natural
justice. The other is the rule against bias. important nature of the rules of natural
justice, it forms this way, unfair hearing as a ground for Judicial Re addressed more
substantively.

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K. PROCEDURAL FLAW

The common law imposes basic minimum standards of procedural fairness They
have traditionally been known as the rules of natural justice embracing the
requirements of (a) a fair hearing and (b) the absence of bias. Emerging
terminology involves looking for "material irregularity" or want of "due process.

A reviewing court is also entitled to exercise review functions where a body makes
a decision without due regard to prescribed procedure. In Neill North Antrim
Magistrate's Court Lord Mustill identified "what in the vocabulary of Judicial
Review would be called a breach of natural justice", thus:

"This term has overtones which seem to me inappropriate to the present case. I
prefer to say that as a result of a bona fide but mistaken ruling on a procedural
matter the applicant has suffered real prejudice. There has been a material
irregularity in the conduct of the committal, if one prefers the transatlantic
terminology (American), a want of due process."

It has been said that it is only in the case of a really substantial error leading to a
demonstrable injustice that the judge should contemplate the granting of leave to
move. Such irregularity may be that the complainant was not given an opportunity
to make arguments. It may well be that even the argument, however cogently
presented, would not have persuaded the presiding tribunal. Yet, failure to give that
opportunity would be fatal and would give rise to Judicial Review.

L.IRRATIONALITY

Irrationality means conduct beyond the range of responses reasonably open to the
public body. A reviewing court may review a decision if it considers that a public
body has done something which ought not to have been done by a reasonable body
with the same function and confronted with the same circumstances. The test in
such cases is objective.

37
A decision will be quashed where it is so unreasonable that a reasonable person or
body properly directing self on the law could ever make it. This is often known as
Wednesbury unreasonableness, from Lord Greene MR's judgment in Auriated
Provincial Pictures Houses Limited Wedary Corporation '' The principle applies in
exceptional cases when the unreasonableness of a decision verges on an absurdity.
For example, the English case of R Ealing London Borough Council ex parte Time
Newspaper Limited the Council was held to be unreasonable in refusing to provide
certain newspapers to their libraries because they did not agree with the newspaper'
proprietors on political grounds.

M. BAD FAITH

Judicial Review will lie where a decision-maker is shown to have acted "mala
fides" that is, in bad faith. "Malo fides" is a phrase often used in relation to the
exercise of statutory powers. It has never been precisely defined as its effects have
remained mainly in the region of hypothetical cases. It covers fraud or corruption.
This is something which should not be lightly alleged and is difficult to prove.
Moreover, it is usually unnecessary given the more familiar alternatives, such as
bias and improper motive.

Mala fides (bad faith) may be evident for instance where the decision- making has
been actuated by vindictiveness.

N. ABRIDGEMENT OF FUNDAMENTAL RIGHTS

Just as in administrative decisions, Judicial Review is also used to remedy

situations where violations of fundamental human rights and freedoms have been
occasioned. Where the instruments of Jud employed to rectify such violations, it is
clear that are as discussed in the preceding sections.

Perhaps this is because such decisions in administrative positions or exercising

executive power.This could be ministerial, administrative or quasi-judicial in
nature. Proceedings of land control board, other statutorily established boards and
prison tribunals fall in this category.

In Wanyiri Kihoro vs The Atomey-General'' the appellant, a lawyer was arrested

without a warrant and detained for seventy-four days without trial.He alleged that

38
he was unlawfully tortured and assaulted contrary to his fundamental rights under
sections 72, 74 and 81 of the Constitution of Kenya. The appellant claimed that as
a result of the unlawful imprisonment, torture and assault, he suffered great pain
and sought a declaration that his fundamental rights had been contravened and
sought aggravated compensation. The trial court having dismissed his case, he
appealed to the Court of Appeal. The Court of Appeal held that since the appellant
was held in unlawful custody, he was entitled to a declaration that his nights under
section 72 and section 74 of the Constitution had been contravened Although this
case was not brought under Order 53 of the Civil Procedure Rules, it demonstrates
particularly with reference to jurisdictions such as England - where declarations are
made in applications for Judicial Review that the scope of review in Kenya can be
enlarged.

The issue of abridgement of fundamental rights was also considered in the case of
David Onyango Oloo v The Attorney-General." This was an appeal from a
decision by the High Court of Kenya. On the 1 of November 1982, the appellant
was convicted of an offense under section 57(1) and (2) of the Penal Code and
sentenced to five years imprisonment. Upon his admission into prison, the
appellant was entitled under section 46(2) of the Prisons Act to be credited with the
full amount of remission to which he would be entitled at the end of sentence if he
lost no remission of sentence. On 17 February 1983, the Commissioner of Prisons
wrote to the Officer-in-Charge, Kamiti Maximum Prison, while the appellant was
serving the sentence and stated that he, the Commissioner considered that it was in
the interest of the reformation and rehabilitation of the appellant that he be
deprived of remission. The appellant averred that prior to the receipt of the
commissioner's letter he had not been charged, tried and found guilty or punished
for any offence against prison discipline, that he was not informed what he had
done to warrant reformation and rehabilitation over and above the lawful sentence
that he was not given any opportunity to be heard, explain or make representations
as to why he should not be deprived of his remission; that the decision of the
Commissioner was arbitrary, in breach of natural justice, ultra vires section 46 of
the Act, and therefore illegal, null and void. The appellant as plaintiff therefore
prayed for judgment against the respondent for:

1. A declaration that the decision of the Commissioner of Prisons depriving

him of his remission was made in breach of rules of natural justice and was
null and void ab initio.

39
 2. A declaration that the decision of the Commissioner was a nullity,was
unreasonable, ultra vires and not based on any material facts.
3. A declaration that the plaintiff was entitled to be released after serving no
thirds of his sentence.
4. A declaration that the imprisonment of the plaintiff (appella) after a normal
sentence was illegal and a false imprisonment.
5. (General damages for false imprisonment.

The Court of Appeal held that the Commissioner's act to deprive the appellant of
his remission was null and void and proceeded to quash it In the words of Nyarangi
JA:

"The Commissioner's decision was an administrative act. Neverthe natural justice

apply to the act insofar as it affects the rights of the appellant's legitimate
expectation to benefit from the to from a prison some 20 months earlier than if he
had to serve imprisonment."

The above case is quoted in ex tenso because it embraces possible grounds for
Judicial Review. In a unanimous judgement.Nyaragi JA proceeded to add:

‘’would say that the principle of natural justice applies where ordinary people
would reasonably expect those making decisions which will affect others to act
fairly. In this instant case, reasonable people would expect the Commissioner to act
fairly in considering whether or not to deprive an inmate of his right of remission
earned in accordance with the provisions of the Prisons Act The Commissioner is
required to act objectively so as to act fairly. Decisions affecting nights of
Prisoners are subject to rules of natural justice just like rights of people at liberty.
To the extent that the appellant was not heard, one can say that the Commissioner
acted subjectively and arbitrarily. A decision in breach of the rules of natural
justice is not cured by holding that the decision would otherwise have. been right.
If the principle of natural justice is violated, it matters not that the same decision
would have been arrived at..."

What is clear from the decision in Onyango's case is that the rules of natural justice
must be followed every time a decision-maker makes a decision affecting the rights
of citizens. Want of such procedure culminating in abridgement of fundamental
rights should certainly be shot down by means of Judicial Review.

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Further in the case of Mingi Kariuki v Attorney-General" the appellant was
charged with treason. He petitioned the Attorney-General to grant leave to an
English Barrister to lead his defence. In the exercise of his absolute discretion to
consider such requests conferred by section 11(1) of the Advocates Act," the
Attorney-General wrote a letter to the appellant saying that leave would not be
granted because the appellant's trial was straight forward and did not require the
assistance of a foreign advocate. In an application for certiorari, the court
scrutinized the reasons upon which the Attorney-General's action was grounded
found them suspect, removed the offending letter in the High Court, quashed it and
directed the Attorney General to reconsider the appellant's request in a manner
more respectful to the norms of sound administration."

Kenyan courts have not always been forceful in situations of breach of

fundamental rights. For example, in Raila Odings Attorney-General," the coum
held that the appellant may be estopped from challenging the sufficiency and detail
of the reasons for a detention order whether before an officer serving the order or
before one of Judicial Review in Kenya Periodic Detainees' Review Tribunals.
These grievances of the appellant were seen a mere technicalities which would not
justify the release of the detainee Similarly, in John Harun Mwau v
Attorney-General," the High Court of Kenya held that a passport is not a right the
restoration of which immigration officials can be compelled by a judicial order.

It is clear therefore, that there are questions of policy affecting what is perceived as
the operation of the bureaucratic machinery of the state. Questions of constitutional
rights seem to be left to the Executive with the judiciary claiming incompetence
and hiding behind the face of technicalities.

As regards private property, the judicial approach seems to be guided by a

protectionist spirit; for instance, where the purpose of public interest is held to
include aims or objects in which the general interest of the community as opposed
to the particular interest of the individual is directly concerned. In Harridas
Chaganlal v Kericho Urban Council the court held that although it was not out of
order for a town planning scheme to be brought into operation, it was subject to
payment of compensation. An enactment could not take away private rights of
property without compensation once the intention is expressed in clear
unambiguous terms.

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O. EXERCISE OF EMERGENCY POWERS AND JUDICIAL
INTERFERENCE

Emergency powers are powers (mostly executive in nature) exercise time when
there is a situation posing grave danger or peril to the The exercise of such powers
in most occasions result in loss of liberty of the person, loss of freedoms of
association, assembly and movement, abridgement of secure protection of law,
protection against arbitrary search and entry and at times loss of protection from
deprivation of property.

Emergency situations by their very nature present tricky choices for all officers
concerned - whether administrative, executive or judicial. Indeed, as mentioned
earlier, questions of constitutional guarantees seem to be left to the Executive arm
of Government with the judiciary claiming incompetence and hiding behind the
face of technicalities.

In Ngotho Kariuki v Attorney-General," the High Court accepted the submission

that the production of a detention order prevented the court from proceeding with
an application for Habeas Corpus as the order was itself sufficient reason for not
producing the detainee.The court assumed that the detention is lawful once the
proper instruments are produced and it is for him who alleges unlawfulness to
prove his case.

P. CONCLUSION

The review jurisdiction of the High Court is an inherent power. It is therefore not
necessary that every case must fit in some pre-determined pigeon-hole before it is
reviewed. There are circumstances which may make a decision so flawed that the
reviewing court may consider exercising its review jurisdiction on the ground that
certain pertinent matters have not been addressed by the respondent body. This
certainly makes the scope of Judicial Review fairly wide.

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LECTURE TWO

Meaning of Judicial Review

Judicial review is the power of the court to check /scrutinize actions, decisions or
processes of public entities or powers derived by the law.
Judicial review is a court based redress mechanism domiciled in a branch of law
known as public law. It dates back to the medieval era when it was recognized and
utilized under English common law as a system of prerogative writs whose grant or
denial depended on the discretion of the monarchy.

Under English common law, judicial review jurisdiction was initially the presupp
of the high court under the King's bench. The purpose of Judicial review then was
threefold namely,

a) to ensure inferior bodies observed the law.

b) To ensure the bodies fulfilled public duties.

c) to ensure the bodies did not act beyond the scope of their powers.

Judicial review procedure commenced with a petition by an aggrieved party and

the courts had inherent jurisdiction to entertain and determine judicial review
applications.Grant or denial of the reliefs sought by a petition depended on the
discretion of the court.

According to Kaluma in the book judicial review law procedure and practice
second edition,2009,2016 at page 1,Judicial review is the law concerning control
by the courts of the powers, functions and procedures of administrative authorities
and bodies discharging public functions.

At the same page Kaluma asserts the following about judicial review. It's the
process by which the high court exercises its supervisory over…

It's the branch of administrative law which deals with control through the court
process of the executive organ of the state.

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All those definitions by Kaluma are partially correct in the Context of traditional
English common law under the prerogative writs system and not under the laws of
Kenya. Article 23 and 47.

According to Nolan in Migai Aketch, administrative law, Strathmore University

2016,at page 413,Judicial review is the power of the courts to countermand the
decisions of the elected branches of the government, for example they contravene
the constitution.This definition is also partial correct because even the appointed
branches are also under the judicial review. It restricts judicial review to elected
members only.

According to Mwabueze in Migai Aketch at page 411,judicial review is" the power
of the court, in appropriate proceedings before to declare a governmental measure
either contrary to or In accordance with the constitution or other governing law
with the effect of Mwabueze B. Or judicial in Africa, 229 St. Martin's Press New
York, 1977.

According to Migai Aketch, a foresee at 411,judicial review functions either to

check the government or legitimize its actions.

Under the laws of Kenya, judicial review is a court based redress mechanism under
which superior and other courts upon which jurisdiction has been conferred
exercise supervisory control over inferior courts or other authorities of a
quasi-judicial nature or authorities carrying out legislative, executive, judicial or
quasi-judicial functions.

The bodies or authorities or organs or even office holders need not be public but
can be either public or private as long as those bodies, organs, authorities or
officials are exercising power that is derived from the law and their actions, in
actions, decisions or a combination of the same adversely affects the rights and
interest of another person whether juristic or natural.

In Kenya judicial review has normative foundations in the constitution of Kenya,

and judicial review jurisdiction it's exercised not only by the high court but also
other courts upon which judicial review jurisdiction has been conferred under the
law. Examples of the other courts are the environment and land court, the
employment and labor relations court, Article 22 and 23 express judicial review as
a remedy. Article 167 expresses the rights.

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Locus standi (or standing) refers to a party’s ability to demonstrate that it has
sufficient reasons for the court to hear it on an issue pending before the court.
Legal standing exists in three instances:

● A party is directly impacted by the effect of the legal action or the law
(injury-in-fact)
● A party is not directly impacted by the action or statute but requests relief
from the court as it has a reasonable relation to the issue at hand
(causation)
● A party has an automatic standing by operation of the law
(redressability)

You can go to court through the following channels;

1.originating summons. You seek leave of the court.

2.File a petition. Quote article 22 to show that you have locus standi. Through a
constitutional petition you can seek judicial review orders. Article 22. Enforcement
of Bill of Rights (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. (2) In addition to a person acting in their
own interest, court proceedings under clause (1) may be instituted by— (a) a
person acting on behalf of another person who cannot act in their own name; (b) a
person acting as a member of, or in the interest of, a group or class of persons; (c) a
person acting in the public interest; or (d) an association acting in the interest of
one or more of its members.

3.Oral application before a judge

Under the laws of Kenya, judicial review jurisdiction is available either at the high
court, either courts equivalent to the high courts and subordinate courts upon which
legislation has conferred judicial review jurisdiction. This legal position is
grounded in article 47 of the constitution of Kenya subarticle 3 of the constitution
of Kenya 2010,which mandates and obliges parliament to enact legislation to give
effect to the rights which are collectively called fair administrative action in terms
of Articles 47 subarticle 1.

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Under article 47(3)(a),the envisaged legislation must provide for the review of
administrative actions by the court or if appropriate review by an independent and
impartial tribunal. Article 47 has been given effect by the parliament through the
enactment of the fair administrative action act No. 4 of 2015. Section 3 of the act,
sets the scope of application of the act to cover both public and private authorities.

In this regard it provides that, it applies to all states and non-state authorities,
including any person exercising administrative authority, any person performing a
judicial or a quasi-judicial action, or whose action, omission or decision affects the
legal rights or interests of any person to whom such action, omission or decision
relates.

Section 7, any person aggrieved by an administrative decision may apply by a

court in accordance with section 8 of the act or a tribunal upon which has
jurisdiction conferred under any written law.

Other Acts of parliament which facilitate judicial review proceedings and the law
reform act chapter 26, 8 and 9,Civil procedure Act and rules made under those two
acts of parliament and commission and administrative justice act No.23 of 2011
among others.

Unlike traditional English under which judicial review common was redress
system with restrictive legal requirements on locus standi, procedure, grounds and
reliefs available, under the laws of Kenya, judicial review is not only a
constitutional redress mechanism, but it's also open to multiple parties under article
22 of the constitution of Kenya which clearly provides for personal and
representative court proceedings to enforce the bill of Rights and article 23(3) of
the same constitution sets out an indicative list of reliefs that the court may grant in
any application or proceedings for enforcement of the bill of rights.

The reliefs include a declaration of rights, injunction, a declaration of validity of

any law that undermines the rights of any individual and an order of Judicial
review. In traditional English common law, judicial review proceedings a
successful applicant could only obtain one or more of the following 3 orders.
Prohibition, mandamus, and Certiorari.

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Normative and philosophical foundations of Judicial review.

Judicial review is premise on the following norms and philosophies or theories.

1.Constitutionalism-The constitution and constitutionalism. article 2 and 3. All
state authority is derived from the law. Article 19,20,21, and 23 provides for
judicial review. And also article 10 and 47 of the constitution which will invite
judicial proceedings. Also the principles in chapter 7 and 8 of the constitution.
Chapter 10 specifically article 167 and 168.Removal of a judge of a superior court.
The constitution is the supreme law and power that stems from the law must be
exercised in accordance with the law.

2. Probity of public administration-The ethical behaviour that upholds Public

Sector Values and ensures impartiality, accountability and transparency. The
probity-specific Directions and Instructions should be an ongoing reference at all
points of a tender process and contract management. The structure of authority
should conform to ethical or moral standards.

3.The doctrine of Ultra-Vires. This doctrine constraints the doctrine of exercise

of power. Whoever derives authority from the law must exercise it within the scope
of power.

4.The rule of law - A. V Daisi That no one is above the law, no one should be
penalized in body or goods except for a definite breach of the law. Everyone is
subject to the jurisdictions of the ordinary courts law of the land. Article 232 of the
constitution.
5. Limited legitimate authority and the principle of a trust - Those who
exercise legitimate authority derive that authority from the law and that authority is
governed and restrained by the law. Article 2(2).no person may exercise state
authority except as authorized under the constitution..

Functions of Judicial review

1.Acts as an instrument of checking and controlling the exercise and legitimate

power authority by those to the authority and power has been donated under the
law. Sets minimum standards, defining procedures and providing for reliefs.

47
2.Upholding constitutionalism and the rule of law by making sure that the law is
supreme and every person is subject to the law.

3.It is an effective legal instrument for enforcement of the bill of rights as

acknowledged in chapter 4 of the constitution of Kenya and various acts of
parliament and various legislation Rose Mambo and others VS Limuru Country
club and others.

4. It is an effective instrument for structured and authoritative resolution of

disputes between the government and the citizens or individuals and between
public and other authorities and individuals and between juristic entities in case of
alleged breach of their interest or rights through administrative, legislative,
executive actions or judicial action, inaction, decisions and processes.

5.its an authoritative legal mechanism for determining and declaring the legality
and validity and exercise of authority or the illegality of the same conferred upon
an organ, a body, an entity or an individual under the law.

Assignment
For each of the functions, get at least two cases. By the high court, court of appeal,
from England and Kenya each two. Indicate the parties in full,give the manner in
which a petitioner filed for the court, list the issues for determination.

Functions of Judicial review.

1.Acts as an instrument of checking and controlling the exercise and legitimate

power authority by those to the authority and power has been donated under the
law. Sets minimum standards, defining procedures and providing for reliefs.

Case example

Royal Group Industries Kenya Limited v Kenya Bureau of Standards [2019]

eKLR.

In Judicial Review No. 8 of 2018, Royal Group Industries Kenya Limited sought
judicial review against the Kenya Bureau of Standards. The Ex Parte Applicant
approached the Court under Certificate of Urgency on 20/03/2018. The Chamber
Summons it filed principally asked for leave to file a substantive Judicial Review
Application against the Respondent and certain interlocutory reliefs. The dispute

48
arose when the Respondent's inspectors, using their powers under the Standards
Act, conducted an inspection at Mache Hardware on 19/03/2018 and impounded
plastic piping products owned by Royal Group Industries Kenya Limited. The
Respondent alleged non-compliance with their standards, specifically related to
markings, labeling, and wall thickness. The Ex Parte Applicant considered this
action unlawful. They requested a prohibition order preventing such actions, both
on their premises and those of their distributors, and a mandamus order to return
the impounded pipes. The court considered complaints against the Re-test Report
in the context of two issues: it was a Judicial Review, not an appeal, and the Court
could review decisions using irrationality and Wednesbury unreasonableness
standards, not merit. The Ex Parte Applicant's complaints didn't meet this
threshold. Thus, the Application dated 09/04/2018 was entirely dismissed with
costs.

Case example 2

White and Collins vs. Minister of Health (1939) 2 KB 838

In this English case, a housing authority was granted the power of compulsory land
purchase for housing under the Housing Act of 1936, with the condition that it
couldn't include land designated as a park, garden, or pleasure ground. However,
the housing authority proceeded to acquire land that was indeed a park.
Subsequently, they sought confirmation of this acquisition from the Minister of
Health. In response, legal action was initiated to invalidate the purchase order on
the grounds of ultra vires, asserting that both the order and the purchase were
unlawful due to the statutory restriction against acquiring parkland. The court
quashed both the purchase order and the acquisition itself, declaring them null and
void.

2.Upholding constitutionalism and the rule of law by making sure that the law is
supreme and every person is subject to the law.

Case Example.

Republic v Joe Mucheru, Cabinet Secretary Ministry of Information

Communication and Technology & 2 others Ex Parte Katiba Institute &
another; Immaculate Kasait, Data Commissioner (Interested Party) [2021]
eKLR

49
The Statute Law (Miscellaneous Amendments) Act No. 18 of 2018 introduced the
National Integrated Identity Management System (NIIMS) in Kenya, prompting
the 1st and 2nd respondents to collect personal and biometric data. The Nubian
Rights Forum case 1 1 challenged this, leading to a court declaration that collecting
DNA and GPS data for identification purposes was unconstitutional. Meanwhile,
Parliament enacted Act No. 24 of 2019, with the court directing data processing to
wait for the Data Protection Act's implementation. On November 18, 2020, the 2nd
respondent announced the Huduma Card rollout, triggering a judicial review by the
applicants .The applicants aggrieved by the rollout or the launch of Huduma Card
and so by a motion dated 24 November 2020 led under articles 23(3)(f)and 47 of
the Constitution; section 7 and 8 of the Fair Administrative Action Act, 2015;
section 8 and 9 of the Law Reform Act; and order 53 of the Civil Procedure Rules,
2010 for judicial review orders of certiorari, mandamus and prohibition all aimed
at the rollout of Huduma Card. The requested orders are: (a) Prohibition to prevent
the Huduma Card rollout without a data protection impact assessment, (b)
Certiorari to nullify the decision for violating the Data Protection Act, and (c)
Mandamus to compel a data protection impact assessment before rollout. The court
found in favor of the 1st applicant in a judicial review case regarding the rollout of
Huduma Cards. The court noted that the respondents failed to understand the
application of the Data Protection Act, specifically section 31, which required a
data protection impact assessment before processing personal data for the cards.
The court issued orders of certiorari to quash the rollout decision and mandamus to
compel a data protection impact assessment. However, it did not grant an order of
prohibition. The court refrained from awarding costs due to the case's public
interest nature.

Case example 2

Anisminic Ltd V Foreign Compensation Commission (1969) 2 AC147

The dispute originated from a compensation agreement between Egypt and the UK,
aimed at compensating British entities for losses during the 1956 Suez incident.
The Foreign Compensation Act prohibited any challenge to the Commission's
decisions in court. The statutory instrument guiding the Commission's powers had
complex provisions regarding the nationality of compensation applicants. It sought
to limit compensation to British nationals, whether they were original property
owners or had been sold to Egyptian organizations. The Commission incorrectly
excluded Anisminic from compensation due to their successor's Egyptian

50
nationality. The House of Lords ruled that this misinterpretation exceeded the
Commission's jurisdiction, making their determination invalid and unshielded from
court challenges.

3.It is an effective legal instrument for enforcement of the bill of rights as

acknowledged in chapter 4 of the constitution of Kenya and various acts of
parliament and various legislation. Rose Mambo and others VS Limuru Country
club and others.

Case Exanple

Rose Wangui Mambo & 2 others v Limuru Country Club & 17 others [2014]
eKLR

The controversy arose from a Club Board resolution in December 2012,

introducing a by-law allegedly excluding lady golf members from participating in
the Golf General Meeting Election. The by-law was enacted just days before the
General Meeting, limiting objections. The meeting was conducted in a biased
manner, ensuring the by-law passed. Later, the 1st petitioner, a Board Director,
faced a vote of no confidence. The Golf Captain expressed 2 displeasure at the
petitioners' conduct, leading to their suspension. The Kenya Ladies Golf Union
also suspended them without a hearing. The petitioners sought court intervention
by way of constitutional petition in March 2013, leading to a constitutional matter
certified in June 2013.The petitioners seeked to nullify a discriminatory by-law,
citing violations of multiple Kenyan Constitution articles 9, 20, 27, 28, 29, 33, 36,
40, 47, 50, 73, and 259. They also demanded reinstatement and declare arbitrary
suspensions violations of Article 27 and 47. The main issues were: 1. Jurisdiction
to inquire into a private club's affairs. 2. Whether the by-law is discriminatory. 3.
The constitutionality of the disciplinary process used by the respondents. The court
held that it had jurisdiction to address alleged violations of fundamental rights and
freedoms under Article 165, supported by Article 22. Corporate entities like the 1st
respondent were bound by the Bill of Rights, which applied both vertically and
horizontally, depending on the context. Alternative dispute resolution mechanisms
were attempted but proved ineffective, justifying the court's intervention. the
Board's amendment to the by-law in December 2012 was discriminatory, violating
both Article 27 (equality) and Article 33 (freedom of expression) of the
Constitution. While private clubs often involve some level of discrimination, this
particular form was impermissible in a just and democratic society and also

51
contradicted the Club's own constitution. The disciplinary process related to the
contested unconstitutional by-law was nullified, and the petitioners' expulsion
resulting from the unlawful action was overturned.The court issued a declaration
nullifying the exclusion of female members from Club General Meetings, citing
constitutional violations. A Mandamus order instructing the 15th respondent to
reinstate petitioners Ms. Rose Mambo and Ms. Caroline Wangari Ngugi as full
Club members and an order of compliance by The Kenya Ladies Golf Union to the
orders issued.

Case example 2

Dolan & Ors, R (On the application of) v Secretary of State for Health and
Social Care & Anor [2020] EWCA 1605

In this case, appellants led by Philip Havers QC challenged the lockdown

regulations enacted in response to the COVID-19 pandemic in March 2020. They
argued that these regulations imposed unprecedented and unlawful restrictions on
civil liberties for three main reasons: They contended that the government lacked
the legal authority to enact these regulations, They claimed that the regulations
violated established public law principles, They argued that the restrictions
infringed upon several rights protected under the European Convention on Human
Rights (ECHR). Initially, the High Court denied permission for a judicial review,
prompting the appellants to appeal to the Court of Appeal. The Court of Appeal,
although willing to hear the case, ultimately dismissed the claims.The Court's
findings were as follows: The government possessed the legal authority to impose
both general and specific restrictions on the population. The Civil Contingencies
Act 2004 also allowed for emergency regulations when existing legislation was
insufficient. The Secretary of State had not unlawfully restricted his discretion, as
those in disagreement with the government, including Parliament and the wider
society, had the opportunity to make representations to advocate for easing
restrictions, which had been duly considered. Regarding human rights challenges,
the High Court determined that the restrictions did not violate the right to liberty,
private and family life, peaceful assembly, property rights, or the right to
education, as they were proportionate responses to the pandemic, and there was no
deprivation of liberty or unlawful interference with these rights on the facts
presented.

52
4. It is an effective instrument for structured and authoritative resolution of
disputes between the government and the citizens or individuals and between
public and other authorities and individuals and between juristic entities in case of
alleged breach of their interest or rights through administrative, legislative,
executive actions or judicial action, inaction, decisions and processes.

Case Example

Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative

for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR

The petitioner, a society of Mitumba Village residents near Wilson Airport, faced
eviction following a notice by the Attorney General. Despite obtaining court orders
to halt the demolition, it occurred on November 19, 2011. The petitioner sought
declaratory reliefs asserting their ownership of the premises and challenging the
forceful eviction without relocation. The respondents argued that the village posed
a threat as it sat on Kenya Airports Authority land. The High Court found the
eviction unlawful, citing unreasonable notice, lack of legislation for such evictions,
and violations of property and housing rights under the Constitution. It also noted
discrimination and inadequate protection for vulnerable groups, like children. They
appealed and The Court of Appeal held that structural interdicts (interim orders)
were not recognized in Kenyan law, but the Supreme Court disagreed, emphasizing
their role in human rights cases. The court clarified that international law, including
UN Guidelines, was part of Kenyan law but not binding unless elevated to
customary international law. It determined that the right to housing accrued
progressively, especially concerning public land, and that evictees had a right to
court protection. The trial court's orders were remitted for appropriate remedies.

Case example 2

Dolan & Ors, R (On the application of) v Secretary of State for Health and
Social Care & Anor [2020] EWCA 1605

In this case, appellants led by Philip Havers QC challenged the lockdown

regulations enacted in response to the COVID-19 pandemic in March 2020. They
argued that these regulations imposed unprecedented and unlawful restrictions on
civil liberties for three main reasons: They contended that the government lacked
the legal authority to enact these regulations, They claimed that the regulations
violated established public law principles, They argued that the restrictions

53
infringed upon several rights protected under the European Convention on Human
Rights (ECHR). Initially, the High Court denied permission for a judicial review,
prompting the appellants to appeal to the Court of Appeal. The Court of Appeal,
although willing to hear the case, ultimately dismissed the claims.The Court's
findings were as follows: 4 The government possessed the legal authority to
impose both general and specific restrictions on the population. The Civil
Contingencies Act 2004 also allowed for emergency regulations when existing
legislation was insufficient. The Secretary of State had not unlawfully restricted his
discretion, as those in disagreement with the government, including Parliament and
the wider society, had the opportunity to make representations to advocate for
easing restrictions, which had been duly considered. Regarding human rights
challenges, the Court determined that the restrictions did not violate the right to
liberty, private and family life, peaceful assembly, property rights, or the right to
education, as they were proportionate responses to the pandemic, and there was no
deprivation of liberty or unlawful interference with these rights on the facts
presented.

5.its an authoritative legal mechanism for determining and declaring the legality
and validity and exercise of authority or the illegality of the same conferred upon
an organ, a body, an entity or an individual under the law.

Case Example

Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative

for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR.

The petitioner, a society of Mitumba Village residents near Wilson Airport, faced
eviction following a notice by the Attorney General. Despite obtaining court orders
to halt the demolition, it occurred on November 19, 2011. The petitioner sought
declaratory reliefs asserting their ownership of the premises and challenging the
forceful eviction without relocation. The respondents argued that the village posed
a threat as it sat on Kenya Airports Authority land. The High Court found the
eviction unlawful, citing unreasonable notice, lack of legislation for such evictions,
and violations of property and housing rights under the Constitution. It also noted
discrimination and inadequate protection for vulnerable groups, like children. They
appealed and The Court of Appeal held that structural interdicts (interim orders)
were not recognized in Kenyan law, but the Supreme Court disagreed, emphasizing
their role in human rights cases. The court clarified that international law, including

54
UN Guidelines, was part of Kenyan law but not binding unless elevated to
customary international law. It determined that the right to housing accrued
progressively, especially concerning public land, and that evictees had a right to
court protection. The trial court's orders were remitted for appropriate remedies.

Case Example 2

R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland

R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland,
commonly known as Miller II and Miller/Cherry, were significant constitutional
law cases heard by the Supreme Court of the United Kingdom in September 2019.
These cases revolved around the extent of the royal 5 5 prerogative's power to
prorogue the UK Parliament.The central question was whether the advice given by
Prime Minister Boris Johnson to Queen Elizabeth II, recommending the
prorogation of Parliament in the lead-up to the UK's Brexit, was legally sound. On
September 24, 2019, in a unanimous ruling by eleven justices, the court determined
that this matter was subject to judicial review and that Johnson's advice had been
unlawful. This decision upheld the judgment of the Inner House of the Court of
Session in the Cherry case and overturned the ruling of the High Court of Justice in
the Miller case. Consequently, the Order in Council allowing the prorogation was
declared null and void, confirming that Parliament had not, in reality, been
prorogued.

LECTURE THREE
History of prerogative writs under English common law
-It dates back to the 13th century.
-The initial elites were three writs, namely:
1.the writ of certiorari,
2.The writ of mandamus,
3.The writ of prohibition
-By the 16th century, two other writs were introduced namely:

55
4.The writ of Habeas corpus
5.The writ of Quo warranto
-They were initiated by and only available to the crown as instruments of
controlling and regulating the exercise of the public powers, the performance of
Public duties, and the administration of Justice within the kingdom.
-The orders were issued by a royal official known as the Chancellor and later by
one of the king's judges who had jurisdiction
-The royal official was believed to be the custodian of the king's conscience and
administered justice in the name of the king and acted as a matter of discretion,
hence the term prerogative.
-Initially prerogative writs were only available to the crown, though they could
only be granted in response to the petition by an aggrieved subject of the crown.
-The petitions were addressed to the king although received and handled by the
chancellor on behalf of the crown.
-The ones that were strictly available to the crown are the first three.
-Initially prerogative writs were adopted under the English legal system as
remedies for the following battles.
a) to impose legal order on the crown
b) to control governmental duties and powers
c) to uphold the rule of law
-The crown used the three orders at its own discretion hence the term
prerogative.
-History however indicates that as early as the 12th Century, some of the writs
were available to individuals but on a limited scale.
-According to Edward Gents, in his work ""The prerogative writs in English law
Yale law journals volume 32, No 6(1923)"".. Writ was originally the short written
command issued by a person in authority and tested by a person in authority and ''
tested'' or sealed by him in proof of a genuineness.

56
-The writs took many forms including superior and rival ones. For that reason,
there were competing writs. Some were issued by the chancellor, judges, judges of
tribunals etc law.
- Consequently writs were used for many purposes including the following:
a) to summon the feudal array
b) to access taxes
c) to commence an action on law
d) to summon jurors
e) to enoble a commoner
f) to levy fines and purveyors
e) to authorize the sheriff to sieze the goods of a debtor.
-The writs that were of interest to lawyers are those used in the course of legal
proceedings.
-Some of the writs were described as writs originals and were used to commence
civil action in the king's courts as early as the 12th century.
-Later, they became 'ministerial' (only obtained by any person who choose to pay
the fee)
-Prerogative writs were and still remain a common feature of the public law and
forms part of the remedies as grievances by individuals, groups or the public in
general.

-The initial purpose of the writ system was

a) the crown used the system to obtain the three orders of mandamus, certiorari and
prohibition to ensure public authorities carried out their duties.
b) To ensure that subordinate tribunals are kept within their sphere of authority.
c) to ensure efficiency and maintenance of orders in the hierarchy of courts and
authorities of all kinds.
In the 16th century, the three orders become generally available to the subject.In
Madzimbamuto v Lardner-Burke (1969), Stella Madzimbamuto challenged her

57
husband Daniel's detention in Rhodesia, following the Unilateral Declaration of
Independence (UDI). The Rhodesian High Court initially deemed the detention
lawful, recognizing the post-UDI government's legislative power. The Appellate
Division upheld the de facto government's authority but required a fresh detention
order. The Privy Council, led by Lord Reid, held the 1965 Emergency Regulations
invalid, asserting UK sovereignty over Southern Rhodesia. Reid rejected limits on
UK parliamentary sovereignty by conventions and questioned their applicability
post-UDI. A dissenting opinion argued for upholding detention orders based on the
necessity doctrine.-Articles 19,20,22,23(sub articles 3f)
Habeas Corpus
In the 16th century a new order joined the list of prerogative writs.The order of
habeas corpus. This order was used to protect the liberty of individuals, therefore it
served as a useful instrument
-It was used to test the validity of imprisonment of rank of crown and validity of
arrest of Public officials or citizens on the orders of the privy councils or its
members who were the upholders of the Powers of the executive.
-The main court that was used to imprison persons in arbitrary arrest, the court of
public order and habeas corpus was instrumental in challenging arbitrary
detentions.
In 1640 the habeas corpus Act was enacted and that gave the order. In 1679
another Act was passed to address the procedural detention. The 1640 Act remains
a pillar of judicial independence because it established only
-Prior to and as late as 1679 the order of habeas Corpus was used for the
following:
a) To test the legality of state action as well as the legality of public authority.
b) In Cases of public authority imprisonment or wrongful detention, the agreed
party could institute an ordinary action for false imprisonment, hence the order of
habeas corpus.
The writ of habeas corpus was politically significant and in 1675 it was issued
against the Lord Mayor of London when he declined to give up the custody of a
wealthy city heiress. Since 1688, the writ has been freely used in cases of restraint
of liberty whether by the state or by private parties.

58
Quo-Warranto

The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or

warrant.’ Supreme Court or High Court issue this writ to prevent illegal usurpation
of a public office by a person. Through this writ, the court enquires into the legality
of a claim of a person to a public office

Facts about Quo-Warranto :

● Quo-Warranto can be issued only when the substantive public office of a

permanent character created by a statute or by the Constitution is involved
● It can’t be issued against private or ministerial office

Note: This writ gives the right to seek redressal to any individual other than the
aggrieved person.

In addition to the fair is the order of quo warranto which was in existence as early
as the 12th century. It's a statutory writ.
Originally the order was intended to serve solely as a royal weapon. It was used to
inform the royal officials of an arrangement.

Prohibition

The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position
issues a Prohibition writ against a court that is lower in position to prevent the
latter from exceeding its jurisdiction or usurping a jurisdiction that it does not
possess. It directs inactivity. On the other hand, prohibition was the weapon of the
king's exile against the ecclesiastical tribunals.

Certiorari

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The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be
informed.’ This writ is issued by a court higher in authority to a lower court or
tribunal ordering them either to transfer a case pending with them to itself or quash
their order in a case. It is issued on the grounds of an excess of jurisdiction or lack
of jurisdiction or error of law. It not only prevents but also cures for the mistakes in
the judiciary. Certiorari originally was one but over time it bore numerous variants.
It was concerned with documents, especially those that were important and hold
records. It was used to order production of records that pertained to a legal process
or legal proceedings. It dealt with cases of ultra vires or insufficient authority.

Mandamus

The literal meaning of this writ is ‘We command.’ This writ is used by the court to
order the public official who has failed to perform his duty or refused to do his
duty, to resume his work. Besides public officials, Mandamus can be issued against
any public body, a corporation, an inferior court, a tribunal, or government for the
same purpose

Mandamus is an order which serves. It was initially used by the autocratic heads
against their subordinates, however it gained a new function and became available
to any party who is aggrieved by a decision or inaction of a public body.
It was and is primarily used to command a public body to perform a public duty.
The order of mandamus was tested and its ethicacy fell in Bagg's case (1616). In
1615, in Bagg's Case, Coke CJ announced that the King's Bench possessed a
jurisdiction to judicially review misgovernment in the boroughs. Coke CJ's claim
to remedy ‘any manner of misgovernment’ was denounced by Lord Chancellor
Ellesmere, and the King's Bench was encouraged to disregard the idea. The King's
Bench quietly ignored this advice and, through what would evolve into the writ of
mandamus, implemented Coke's vision of a process of judicial review of
misgovernment in the boroughs. This article reviews the uses to which Coke's

60
remedy was put within the political life of the seventeenth- and eighteenth-century
chartered corporation.
In the case Sir Edward used the order of mandamus to uphold the offensive and
dignity of the in dispute over an election at plymouth. In this case the original
form. The Bagg's is considered to be the wealth head of mandamus.
-prerogative orders issued by the courts require obedience or an explanation or else
disobedience will be a crime of contempt in court. Mandamus is one of its scope
and its utility is wide. It takes the form of a check on executive power.

In conclusion, the above discussion clearly indicates the following about writs.
a) the are either originals or judicial
b) they are obtained either as a matter of course or in exercise of magisterial
powers
c) Can be used to safeguard personal or public relief, Though originally available
to the crown only and against public those orders are now available to private
citizens or subjects of the crown and are available as a matter of course in the
judicial process
d) From their prerogative status in medieval England, prerogative writs have been
transformed into statutory writs in England and statutory constitutional remedies in
Kenya. Under article 7 of the constitution the right to fair trial is acknowledged and
provisions made for legislation providing for judicial review of administrative
action.
The same legislation was enacted as the fair administrative act of 2015 to give
effect to article 47 of the Constitution. Administration action is available against
public bodies and persons and reliefs available as many as 12 unlike the original 4
Judicial review procedure is also defined in the same act and timelines Other laws
that govern judicial review are civil procedures rules and act, judicator act.
Assignment
Judicial review under English common law
Edward James prerogative writs Wade H. R 259,472,500, 568

61
Wekesa 2021 chapter 4-8
Frank J Good now.. The writs of certiorari. September 1891..pp 493-536
B. L Jones and k. Thompson Garners administrative law 2005 chapters 8 and 9

LECTURE THREE
JUDICIAL REVIEW UNDER COMMON LAW
-British law has experienced chthonic law, C. L and chthonic law.
-The Norman were head of state for England.Between 11th and 12th Century,
Europe experienced the emergence of many axon laws in European law, and new
ideas from continental law were considered and some incorporated into English
law with necessary adaptation to suit legal, political and social lives of residence of
England. -Since then, the Common law has evolved slowly around the plenitude of
laws in legal institutions of medieval England.
-It grew through a process called Accretion of learning around the royal commands
of the chancellor for the resolution of legal disputes.
-Each writ bore a particular procedure appropriate to the type of writ.
-Despite being the foundation of the English common law, the writs and forms of
Actions are shrouded in darkness, complexity and boredom.
-No one can understand the English common law without the writ system and
without them there was no way anyone could access a judge and seek justice.
-The writs allowed judges to avail and maintain priority in the hierarchy of
common law institutions.
-A writ took the form of instructions from the crown to a royal officer, often the
sheriff requiring /commanding the sheriff to do a particular thing to advance
dispute resolution and also to require the defendant to appear, and also direct the
sheriff to seize private property unless the defendant justifies the keeping of it. It
could also empower the jury.
-The most restrictive writ was that the issue dependent on existence of a remedy
thus the maxims "where there is no remedy there is no wrong"

62
-It had procedural restrictions hence it was a pigeon - hole kind of a system, hence
no party could institute a claim and change from one form to another in course of
litigation.
-As a consequence, common law became a series of procedural rules or avenues/
remedies for accessing the jury and state one's case.
-Traditionally the jury enjoyed monopoly (substantive decision making) including
applications despite the fact that jurors were non-lawyers and most of them were
illiterate.
-That's why the common law has been described as a law of procedures and
whatever substantive law was hidden by it was secreted in its 'interstices'.
Dissertation of early law and customs (London John Murray (1883) at 389.
-The common law procedure was unique and has had a lasting influence on legal
systems globally.
-Under the common law legal practices facts /evidence is presented by witnesses.
Decisions are left to the jury and the role of the judge was to decide whether the
case fell within the chosen writ.
-In the absence of that finding that the case fell within the chosen writ, the court
had no jurisdiction.
-Jury had monopoly of local law and the lawyers were to argue that the they
wanted from the jury was within the writs "pleading into issues"
-Witnesses helped lawyers bring the facts and the lawyers advised the judges on
the law allowing the judges to focus on the contours of the writs the law.
-Cases were conducted orally. Consequently, the system that resulted came to be
known as a trial and the judge saved as a source of law. -Ultimately, judicial rulings
by a very small number of judges came to define the ambit of the writ with no
notion of stare decisis.
-Under the writ system, there were only first-hand judges and no court of appeal.
-The traditional approach in Judicial review focused on procedural aspects hence it
sought to imbue the process only.
-With statutory intervention and influence of English continental law, the
contemporary approach examines the process and outcome.

63
-The current judicial review system both in England and Kenya has the
fundamental principles of the common law including the elements of the writs
system as well as constitutional and statutory principles and procedures.

Fundamental principles of Judicial Review under English law

-Judicial review is a court-based grievance resolution mechanism.
-It provides a mechanism for aggrieved parties to assert their fundamental rights,
hence the law of decisions made by the government and seek remedies when things
go wrong.
Fundamental Principles
1.The principle of separation of powers. Checks and balances
2.Judicial independence/Autonomy-Judicial reviews decisions of other organs
and those of quasi-judicial bodies to ensure the decisions are within the law with
no impartiality.
3.Probity of Administration. Those who derive power from the law must exercise
within the confines of the law and should be subject to scrutiny.
4.Accessibility and Affordability. There should be no financial or procedural
barriers to those seeking judicial remedies.
5. Effectiveness. Judicial review remedies should be effective. Judges should not
be limited in terms of remedies.
6. Scope. The scope of Judicial review is ever growing in terms of personal bodies,
process, decisions and actions subject to Judicial Review. For that reason,
legislative executive and judicial decisions are subject to judicial review and the
scope is defined in legislation such that some actions are not subject to judicial
review.
7.Rule of law and constitutionalism. Government is a creature of the law and so
are public bodies. Every government organ, public and private bodies that derive
their powers from the law is bound by the law. Legitimate power must be exercised
legitimately using procedures defined in the law. Acting without, in excess of
contrary to the law amounts to breach of the rule of law and constitutionalism. That
may be informed by substantive ultra-vires. Similarly using a procedure other than

64
the mandated one or in breach of a mandatory procedure is a breach of the rule of
law (procedural ultra-vires). Any such breach invites scrutiny under judicial
review.
Available historical and legal literature reveals the following, the current system of
judicial review in England.
a) It is a creature of statute and judges or case law. It has been developed
through prerogative writs in common law principles.
b) It has wide scope in terms of subject, grounds and remedies.
c) Courts have been in continent to play a prominent role in clarifying Judicial
review .eg in case of prohibitions (1607) and the case of proclamations
(1610) both of which held that the crown and its servants served under the
law and had no power other than that which the law allowed.
d) In the late 20th century, the courts reinforced specific constraints on ministers
in their exercise of power.eg in the case of Ridge vs Baldwin (1964) AC 910
, Conway vs Rimmer (1968) AC.910, Padfield vs Minister of Agriculture
fisheries and food (1985)AC.374
- Similarly, the courts refined the grounds for Judicial review and the concept of
locus standi in the case of GCHG (1985) AC.374 and England Revenue
Commission case.
8.Human Rights. Human rights are inherent under English common law and
under international law, they have fundamental rights which are unavailable. They
aren’t granted by the state but the state has a duty to uphold. Judicial Review is one
of the most effective mechanisms for enforcement of human rights of the subject
and even foreigners in England.
9.Limited Governmental/public power/Authority. Governmental powers are
derived from the laws whether common law or statutes. No state organ, public
body, public official or a group of them can exercise authority other than the one
conferred by the law and in accordance with the procedure and for the purpose for
which the power was granted under the law. Any purported ultra-vires will invite
scrutiny under Judicial review and if the applicant is successful, the court may
issue any of the discretionary remedies. In case the power granted is discretionary,
then it is a duty for the discretion to be exercised judicially for the proper purpose
and proportionally must be considered. Where there are legitimate expectations
born out of practice, expectations or customs, breach of the expectation would be a
ground for Judicial review in England.

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10.Justiciability. The limit to which judicial authority can be exercised.eg Article
3(2) of the Constitution. Not every matter can be challenged in courts of law.

Nature of Judicial Review in England

a) Judicial review in England places its origin to prerogative writs, namely;
certiorari, Habeas corpus and mandamus which were only available on the
ground in response to the petition by a subject who was aggrieved by
actions, decisions or inactions of public bodies/officials. Initially, petitions
were heard and remedies granted to aggrieved by a royal known as king’s
Chancellor or behalf and in the name of the king or queen.
b) Following statutory reports of the 1870s including Judicature Act of 1870
and 1875, prerogative writs became Judicial writs/remedies available from
the kings, courts, later the queen’s bench decision of the high court in
England. Following the fusion of the common law and equity jurisdiction
under those acts, judicial review became available from both common law
courts and the Chancery different of the high court.
c) Despite being incorporated into the English system judicial review are
discretionary remedies; they are not granted as a matter of cause but at
discretion of the court.
d) Certiorari and prohibition are complementary orders; save that, they are
sought and may be granted at different levels altogether in the judicial
review Case.
e) Certiorari is retrospective/retroactive in effect because it quashes the
decisions, process or actions which are ultra-vires or one vitiated by the
errors on the case of record. The order of prohibition is prospective as it
forbids some actions intended or is due for execution / implementation. It
prevents a decision maker from proceeding with a process or execution of
decisions or actions which would be ultra-vires.
f) The two orders of certiorari and prohibition can and are often sought
together although they can be sought separately where also it can also be
sought at the same time.
g) Eligibility for grant of Judicial Review orders does not depend on the
applicant showing personal rights thus nominally, the orders are granted to
the crown as the crown has sufficient power to require public officers to act
lawfully.

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h) Certiorari is used to bring the high court the impugned decision of a certain
tribunal or authority for scrutiny for legality, if they are found legally
wanting, they shall be quashed without the high court making any decisions
in place of the quashed one. If necessary the high court also issues the order
of mandamus requiring the decision maker to decide according to the law
within a specific time frame.
i) Judicial review orders must be sought by the procedure of Judicial Review.
j) In case, the public body officials or inferior tribunals is aggrieved by
decision of the high court, the aggrieved party has the right to access of
appeal.
k) Judicial review has an underlying public policy namely; that all tribunals and
public authorities have only limited judicial powers, for that reason the
crown is to ensure that the rule of law is upheld for justice and order.
l) Whereas judicial review applications are set in motion by private
complaints, the normal plaintiff is the crown expressed to be acting on
behalf of the applicant e.g R v England revenue commissioner ex parte
National Federation of self-employed and small business Hd(198)AC
617 Or. R v secretary of states for the home department. Ex parte
Pierson m) Certiorari focuses on ultra-vires process, actions and decisions.
The ultra-vires can be procedural or substantive. While prohibition focuses
on something which is intended in the form of practice, process or decision
which would be in excess of jurisdiction. Thus in; R v Electricity
commissioner ex parte London Electricity joint committee company
(1920)ltd (1924)1KB 171 at 206 Alkin LJ said :I can see no difference in
principle between certiorari and prohibition except that the latter may be
invoked at a later stage.
m) Certiorari and mandamus deal with power or authority including the process
of exercising the power as well as functions conferred or entrusted to a
public body / officers/official. On the hand mandamus deals with duties
imposed on a public body or official under the law.
n) Mandamus enforces a legal duty on whether imposed under common law or
statute, it’s also used to prevent breach of duty and injustices. Even of the
time set for carrying out a duty has expired under legislation, the court has
discretion to order ex parte to carry out the duty. Where the default was
committed by a private office holder, the successor would be ordered to
make good his predecessor's default as in the case of. R v Church warden
all saints wigan (1876)1App 611.

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o) Mandamus has a wider scope than the other two save that in modern nation
state public authorities prefer to respond to political stimulus instead of
risking legal sanctions.

Example of Applications of the three orders in England Cases in which

certiorari, prohibition have been used:
a) Used to prevent authority from proceeding to execute authority which is not
within its powers.
b) To prevent execution of a decision initiated by a breach of principles of
natural justice.
c) To prevent the housing authority, demolishing a house which was improperly
condemned Estates and Trust Agencies (1927) Hd v Singapore improvement
trust (1937)App 1838.
d)Used to prevent a rent tribunal from executing a case which is outside its
jurisdiction. R v Tottenham and District Tribunal ex parte Nathfield (Higheale)
Hd (1957)
e)To prevent the local authority from licensing indecent films. R v Greater
London Council ex parte Blackburn (1976)1W LR 550

Limitations of Judicial Review in England

1.The order of prohibition cannot issue to parliament from proceeding or
proposal reports, however if the applicant demonstrates that the presentation of
the report is illegal then the court will therefore state it illegal. R v Bonday
Commission of England ex parte Foot (1983)
2.They cannot issue if the matter in question is by statutory provision excluded
from judicial review either through finality Clauses or ouster Clauses.
3. Cannot issue if there is a requirement for exhaustion of the inherent
mechanism.

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Recent Reforms in Judicial review
-As part of Administrative law reforms, the British commissioned a committee
to seek public views on desirable reforms. The committee submitted its reports
and the government filed its response to the report in March 2021.The report
was presented to parliament in March 2021.
-It is the government response to the review of administrative law.
The following matters are evident.
1.The review seeks to ensure judicial review is available to protect the rights of
the individual against an overbearing state while ensuring judicial review is not
abused to conduct politics or create needless delay.
2. The panel Identifies the growing tenets in courts to edge away from its
jurisdiction. Consequently, the reasoning of decision makers has been replaced
with that of the court.
3.There is a need to create a judicial review that prevents the court from baring
decisions on merits or valves issues which lie more appropriately with
executive or parliament.
4.The panel proposed two references to substantive law. To reverse the effects
of the court judgment and to introduce suspended quashing orders as a new
remedy. The reforms could be used to clarify the principles that determine how
the courts declare decisions null and void (principles of nullity)
5. The reforms are intended to restore the place of justice of the heart of British
society by ensuring all institutions of the state Act. Together in appropriate
capacity to uphold the rule of law. That will affirm that courts are servants of
parliament.
6.The reforms are also meant to preserve the fairness inherent in the British
justice system. This fairness protects the rights of citizens. The courts should
have available to them a flexible range of remedies so as to allow the cases to
be resolved in a manner sensitive to rights and public interests.
7.The review will take an initiative approach or an implemental approach by
addressing complexities inherent in judicial review through prioritization
process. The priority would be the process and remedies.

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LECTURE FOUR
History of Judicial Review in Kenya
-Judicial review in Kenya is a colonial legacy. It is part of the legal and
institutional framework introduced in Kenya during the colonial era.
The history of Judicial Review in Kenya, has two phases
1.the first one dates back to the year of colonialism and ended on 27th August,
2010 when the current constitution was promulgated. In particular the period
commenced in 1956 when Judicial review commenced in 1956,when Judicial
Review remedies were recognized under the law reform Act,specifically,under
Section 8 and 9.
-The two sections;Section 8(1) of the said Act prohibits the High Court from
using any of the prerogative writs of mandamus,prohibition and certiorari in the
exercise of the Civil or criminal jurisdictions.
-Section 8(2) of the act, empowered the high court to make an order of
prohibition, mandamus or certiorari on the basis of sections 7 of the
Administration of Justice (Miscellaneous) Act 1938 of the United Kingdom
which mandated the high Court in England to make the three orders.the rest of
the provision of sections 8 of the law reform act govern the procedure for the
conduct of Judicial Review application specifically for the three orders.
Sections 8(3)provides that the orders made in any pleadings in prohibition shall
be final and only subject to the right of appeal under sections 8(5) of the act.
Appeals to the orders lay to the Court of Appeal.
Under Section 8(4) some harmonization of provisions relating to the writs of
prohibition, mandamus or certiorari and those orders was made so that in case
of any issues or awards of any such writs the same shall be construed to refer to
the awards of the same orders.
Under section 8(5),Incase a person is aggrieved by an order made by the High
Court in the exercise of its jurisdiction of the Act, such person had a right of
appeal to the Court of appeal.
Under Section 9,provision is made for the making of rules of court, for any
matters relating to the procedure of civil courts and that power shall extend to
the making of rules describing the procedure, and filing of documents or issue

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of the documents where any of the three orders of mandamus, prohibition and
certiorari are sought requiring leave of the Court to be made requiring such and
the power also gathers the making of rules and making any provision for
exceptions to the requirement.
Similarly the rules of court provides for specific grounds to be relied on, to that
end Section 9(1)(c) permits the rule of court, requiring where leave is obtained
provided that no leave shall be granted except with the leave of the court except
the grounds and reliefs specified when the application for leave was obtained.
Under section 9(2) power is provided for making of rules settings time limits
within which application for the three orders may be sought. In that respect
from the date, the cause of action arises, applications are required to be made
within six months or within any shorter period as may be prescribed in the
rules.
This provision is subject to the provisions of Sections 9(3)which govern or
relates to applications for orders for certiorari, to remove any judgment, order,
decree, conviction or other proceedings from the person or agents that made or
conducted them to the high court for the purposes of having it or them being
quashed.
In that case, leave shall not be granted for a party to apply for the order of
certiorari except where the leave is sought within six months after the date of
the judgment, decree or other proceedings sought to be quashed or within any
shorter period prescribed under the law.
Further, in case, the judgements, order, decree, conviction or such other
proceedings is subject to an appeal or subject to appeal and a time is limited by
law for bringing of the appeal, the judge or court may adjourn the application
for leave until the appeal is determined or the time for appealing has expired.
Section 10,expressly provides that the law reform act, shall bind the
government.
Apart from the Law Reform act, during the period 1956,to 27th August
2010,other aspects pertaining to application for the three orders were covered
by the Civil procedures Cap 21 and Civil Procedures Rules made under the
act. In particular, the following civil procedures rules applied and continue to
apply to the application for the three orders and other judicial review orders
permitted under the constitution of Kenya, Article 23 and the fair

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Administrative action act, No. 4 of 2015.The specific orders are Order
53,which set out the procedure, the timelines, the form and other matters
pertaining to application for judicial review.
The current rules were made in 2010, pursuant to the provisions of Sections
8(1) of the civil procedures act and gazetted as legal notice. The rules have
since been amended and the amendments published and civil procedures
(amendments) published as legal notice No. 22 of 2020 in Kenya supplements
the Kenya Gazette (2020) No. 11 of that date.
During the period, 1956 to 27th August 2010, applications for judicial review
targeted decisions, judgments, decrees or proceedings of the government or a
public body, agents or officers, in exercise of power or discharge or functions
deriving from the law. The three orders could not be sought against private
agencies or non governmental agencies.
Judicial review applications for any or all of the three orders could be brought
against civil or criminal proceedings or decisions made in civil or criminal
proceedings. Section 9(3) of the Law Reform Act.
Parties seeking any of the three remedies were at liberty to invoke any of the
grounds recognized under English common law eg ultra vires, breach of
principles of natural justice or unreasonableness, bad faith, extraneous
considerations, jurisdictional errors, errors of facts, abuse of power,
bias,illegality,breach of the principles of legitimate expectations.
Other grounds that a party could or would rely on were statutory or
constitutional.
After the promulgation of the constitution of Kenya 2010, article 23(3)
recognized orders of Judicial Review as part of the reliefs that may be sought by
a party or a person for denial or other forms of breach of a parties fundamental
rights and freedoms under the bill of rights.

Locus standi
The issue of Locus standi was also resolved under article 22 of the same
constitution pursuant to which proceedings may instituted or prosecuted in a
personal or capacity including the interest of the public (others called public
interest litigation)

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 article 19 applies to decisions and actions of state and non state agencies and
all organs mandated to make decisions under law enforced in Kenya.
Article 47 sets out minimum standards for administrative actions. Any
derogation from the standard is a valid ground for challenging an
administration action at the instant of an aggrieved party or by a representative
of an aggrieved party. Those standards are called the right to fair administrative
actions. For an administrative action to be said to be fair within the meaning of
article 47(1)it must be taken expeditiously, the process used must be efficient,
the decision and the process leading to the decision must be lawful. The
decision or the actions must be justifiable when subjected to Wednesbury
standards(reasonableness). Further if any intended or taken administrative
action is likely or has adversely affected a person, the decision maker has an
obligation or duty to supply the affected person with the reasons for the
decisions in writing.
Article 47(3) obliges parliament to make legislation providing for review of
administrative decisions of the court or an independent and impartial tribunal
and for the promotion of efficient administration.
To this end, (Article 47 (3)) parliament enacted the fair administrative action act
of 2015 thereby giving effect to article 47 of the constitution of Kenya.
Apart from Article 23 and article 47 of the constitution, other articles relevant
to judicial review include Articles 10, 165, 168,227(also public procurement
and disposal act) article 222 and also 48 to 51.
Under the fair administrative actions act, administrative action is broadly
interpreted and covers powers, functions and duties exercised by authorities,
exercised, discharged or executed or Undertaken by other authorities or
Quasi-judicial tribunals.
It also covers acts of omission and commissions of decisions of any person,
body or authority affecting legal rights/interests of another person to whom
such action,commission/decision relates.
Another definition of administrative action is rendered on the Commission of
Administrative Actions Act(2011)
By virtue of provisions of Article 47,8 of the F.A.A.A(2015),Section 3 of ,the
Scope of judicial review has been broadened to cover state and non-state

73
agencies,loving and exercising administrative authority,judicial/Quasi-judicial
authority or legislative authority,all authority/power under any written law and
it also covers actions,omissions and decisions leaving administrative effects on
interests of legal rights on other persons.The expansion, has also covered
grounds,that way be invoked in judicial review proceedings and remedies that
may be sought/granted in Judicial review proceedings .
It covers Judicial review procedure and the timelines written which judicial
proceedings shall be determined,thereby making Judicial review predictable and
referrable in enforcement of rights and freedoms.The Act permits the
application of general public of common law,rules of natural justice,doctrines of
equity, and therefore the plea and grounds applied prior to 2015 are still
applicable today and the party can choose which place to choose.

-The following Acts of parliament and subsidiary legislation made under

each of them applies to judicial review proceedings.
1.The judicature Act Cap 8 laws of Kenya. (section 3)
2.The law reform Act Cap 26 laws of Kenya - passed in England in 1956.It
received crown assent on 17th Dec. 1956 and commenced on 18th/12/1956.
3.The Civil procedure Act Cap 21.
4.The Fair Administrative Action Act No. 4 of 2015. It received the president's
assent on 27th May 2015 and commenced on 17th June 2015.
5.Commission on Administrative justice Act. No. 23 of 2011.
6.The Civil procedure Rules 2010.
7.The law of limitations Act Cap 22. laws of Kenya
-Prior to 1996,Judicial review jurisdiction was the exclusive mandate of the
high court of Kenya and limited to the three prerogative units.
-However, following subsidiary legislative amendments by the rules committee
under the jurisdiction of the high court was to permit the court to grant any
other order that the court would deem fit in the interest of justice even if the
applicant had not specifically sought that order when seeking the leave of the

74
high court to institute judicial review or seeking judicial review orders after
grant of leave.
-The connection between the prerogative writ system and judicial review orders
remains hence the orders provided for in section. 11 of the Fair Administrative
Action Act are variants of the 3 prerogative writs of mandamus prohibition and
certiorari.
-However, under the laws of Kenya i. e Articles 22,23 and 47 of the constitution
of Kenya as well as the Fair administrative act section. 11, in proceedings for
judicial review, the court has the power to grant any order that is just and
equitable in a particular case.
-The oldest English law that applies to judicial review in Kenya is the law
reform Act of 1956.This is an Act of parliament of England to affect reforms in
the law relating to Civil actions and prerogative writs. It forms part of the laws
of Kenya from the 17th December 1956.
Specific decisions of prerogative writs are in part 6 of the act.
a) In a nutshell section 8(1) of the Act abolished the jurisdiction of theHigh
court to issue any of the 3 writs.
b) Under section. 8(2) it empowers the high court in England by virtue of
section 7 of the administration of justice (miscellaneous provisions Act) to
make an order of writs and the High court of Kenya is granted with the power to
make the orders.
c) Prohibits reviews of any of the orders by the Court that has made them
thereby making the orders final subject however to the right of Appeal confined
under section. 5(6).
d)Replacing any written law of the term writ of mandamus,prohibition and
certiorari with an order of mandamus, prohibition and certiorari.
e) Granting a statutory right of Appeal by any person aggrieved by an order
made in the civil jurisdiction of high court.

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Section 9 of the law reform Act provides for the rules to be met by the rules
committee to govern the procedures of civil courts.
i) The rules can prescribe the procedure and fees payable on documents
filled and in cases where the 3 orders are sought.
ii) Requiring that leave be sought before and application for the 3 orders is
made save where the rules state otherwise.
iii) Requiring where leave is obtained, no relief shall be granted, no ground
shall be relied on other than the ones specified when the application for
leave was made;but the court is granted power if it wishes to grant leave.
iv) Under section 9(2) of the law reform Act, the rules may also prescribe
time limits within which application for an order for certiorari,
prohibition or mandamus may be met. Generally, 6 months from the time
the cause of action arose.
v) Under section 9(3) application for certiorari require leave of the High
court which must be sought within 6 months of the date of the judgment,
order, decree, conviction or other proceedings sought to be impinged
/quashed save where a shorter timeline is made by law or where the
decisions in question is appealable.
-In case an application for leave to institute proceedings is sought the High
court may adjourn the applications for leave until the appeal is determined or
the time for appeal has expired.
-Judicial review applications may be made by an individual against a state
organ / agency or the government and by virtue of the provision of Section 3 of
fair administrative act by and against state and non-state agencies.
-This is a departure from the initial judicial review rules, where the orders were
only available only against state Agencies and public organs.
-The judicature act Cap 8 laws of Kenya (section 3) confers jurisdiction on
superior and subordinate courts of Kenya in the same lines as the High court
and superior courts of England. This Act was initially made in 1967.It has since
been amended to reflect the current legal and institutional arrangements in
Kenya.
-The judicature Act revised in 2018, recognizes the superior courts and
subordinate courts under the constitution and other laws.

76
-Section 3(1) requires the courts to exercise the jurisdiction in accordance with
the following hierarchy of the laws of Kenya.
a) Constitution of Kenya.
b) subject to other written laws.
c) the substance of common law.
-The fair administrative action Act of 2015, sensor’s the scope of Judicial
Review grounds to be relied on by an applicant seeking judicial review, judicial
procedure, rules governing judicial proceedings, reliefs that may be sought and
granted.
-Judicial review and the period within which judicial review judicial review
applies and Appeals under the act shall be determined.
-It also clarifies that the general principles of common law and rules of the
natural justice system continue to apply in judicial review proceedings.
-Under section 2 the fair administrative Act. Administrative action is defined
in an open-ended manner to include;
i) The Powers, functions and duties exercised by the authorities or quasi-judicial
tribunals.
ii) Any Act, omission or decision of any person, body or authority that affects
the legal rights of any person to what such action, omission or decision relates.
-Under section 11, the orders that may be sought or granted in an application
for judicial review are not listed in an exhaustive manner.
-Instead, the court is mandated to grant any order that is just and equitable to the
15 that are listed in section 11. That clearly demonstrates that judicial review is
no longer limited to the three prerogative writs but to the ranging list of orders
provided the orders are just equitable as determined by the Court.
-Unlike the traditional English law position which restricted judicial review to
administrative decisions by public entities and later to legislative actions as well
as executive actions by the servants of the crown, in Kenya judicial review
applies to both state and non-state Agencies and persons with administrative,
judicial and quasi-judicial authority functions or duties.

77
-The persons include cabinet secretaries in state organs as in Article 260 of the
constitution and tribunals especially under written laws of Kenya.
-Under section 2 of the commission of administrative actions Act, 23 of 2011,
the scope of administrative action is broadened to include;
a) An act carried out in public service
b) Failure to act in discharge in public duty required an officer in public service
c) Making a recommendation to the cabinet secretary.
d) An action made pursuant to recommendations to the cabinet secretary.
-Under the civil procedure rules, order 53 provides for judicial review. Order 53
rule 1 requires an applicant for the three orders to seek leave of the high court
before filling application of the relief. No application for judicial review prior to
obtaining the leave. Leave is sought through an ex parte chamber summons
application accompanied by the Statement indicating the name of the applicant,
the relief, grounds and verification of the facts by the affidavit.
-Time for seeking leave is regulated under order 53. If leave is granted, the
substantive applications for judicial review should be filed by Notice of Motion
within 21 days.
-Thus, whereas the application for leave is ex parte, all judicial review
applications are meant to be heard by inter-parties. Read order 53-application
for judicial review
-Despite the changing character of the judicial review from the era of
prerogative writs in England through the judicature Act of 1880 in England and
statutory law reforms in England in Kenya as well as the incorporation of the
Judicial review in Article 28 of the constitution. The focus of judicial review
remains the process rather than the decision itself. However, even where the
process is lawful, the decision may be quashed for substantive ultra-vires or
unreasonableness or breach of rules of natural justice.
-Under Article 23 of constitution judicial review is one of the relief that can be
used to uphold the bill of rights.
READ
1.Constitutional petition 160,2013 HC of Kenya, Nairobi.

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2.Rose Wangari Mambo and 2 others vs Limuru Country Club and 15 others
3.Civil Appeal No.250 of 2013.Limuru Country club and 2 others vs Rose
Wangari Mambo and 2 others,2013

Cases of Judicial Review in Kenya since 2015

1.. Republic v. Attorney General Ex Parte EK & 6 Others (2012). In this
case, the High Court of Kenya held that the government's policy of arresting
and detaining refugees who had not registered with the Department of Refugee
Affairs was unconstitutional and a violation of international law.
2.Republic v. Independent Electoral and Boundaries Commission &
Another Ex Parte Thirdway Alliance Kenya (2016). In this case, the High
Court of Kenya reviewed a decision by the Independent Electoral and
Boundaries Commission to reject the nomination of a political party's
presidential candidate. The court found that the Commission had not followed
the proper procedures and ordered the candidate's name to be included on the
ballot.
3.Kenya Revenue Authority v. Bidco Africa Limited (2016). In this case, the
High Court of Kenya reviewed a decision by the Kenya Revenue Authority
(KRA) to assess Bidco Africa Limited for tax evasion. The court found that the
KRA had not followed the proper procedures and ordered the tax assessment to
be set aside.
4.Juma Kennedy Mwamta & 7 Others v. Attorney General & Another
(2017). In this case, the High Court of Kenya reviewed a decision by the
government to close Dadaab refugee camp. The court found that the decision
was unconstitutional and violated the rights of refugees and ordered that the
camp be kept open.
5.Geoffrey Otieno Aketch v. Attorney General & Another (2017). In this
case, the High Court of Kenya reviewed a decision by the Director of Public
Prosecutions to charge a man with robbery with violence. The court found that
the charge was unconstitutional and a violation of the man's right to a fair trial
and ordered that the charge be dropped.
6.Law Society of Kenya & 3 Others v. Cabinet Secretary for Interior and
Coordination of National Government & 2 Others (2020). In this case, the

79
High Court of Kenya reviewed a decision by the Cabinet Secretary for Interior
and Coordination of National Government to close two refugee camps in the
country. The court found that the decision was unconstitutional and violated the
rights of refugees and ordered that the camps be reopened.
7.Executive Director, Kituo Cha Sheria & Another v. Attorney General &
Another (2020). In this case, the High Court of Kenya reviewed a decision by
the government to impose a curfew and other restrictions in response to the
COVID-19 pandemic. The court found that the restrictions were
unconstitutional and violated the rights of Kenyan citizens and ordered that they
be lifted.
8.Kenya Human Rights Commission & Another v. Cabinet Secretary for
Interior and Coordination of National Government & Another (2020). In
this case, the High Court of Kenya reviewed a decision by the government to
disband the National Assembly's Justice and Legal Affairs Committee. The
court found that the decision was unconstitutional and a violation of the
separation of powers and ordered that the Committee be reinstated.
9.Okiya Omtatah Okoiti v. Cabinet Secretary for the National Treasury &
Another (2021). In this case, the High Court of Kenya reviewed a decision by
the government to raise the country's debt ceiling. The court found that the
decision was unconstitutional and a violation of the Public Finance
Management Act and ordered that the debt ceiling remain unchanged.
10.Bunge La Mwananchi & Another v. Inspector General of Police & 4
Others (2021). In this case, the High Court of Kenya reviewed a decision by
the Inspector General of Police to ban demonstrations in certain parts of
Nairobi. The court found that the ban was unconstitutional and violated the
right to peaceful assembly and ordered that it be lifted.

LECTURE FIVE
Judicial Review in Kenya since 27th August 2010
-Since 27th August 2010,judicial review orders became constitutional relief
which may be sought and obtained by any aggrieved person for the purpose to
enforce the bill of rights.

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-Article 22 resolves the issue of locus standi in the enforcement of the Bill of
rights, thus an individual group of persons or a representative of a particular
class of people or associations or a person acting in the public interest, may
institute judicial proceedings.
-persons refers to both persons and juristic persons -Whereas judicial review is
recognized under Article 23(3) of Constitution, articles 47 of the same
constitution expressly acknowledges every person right to fair
administration.The principles under Article 47(1 and the requirements in 47(2
underpin decisions made by administrators. Breach of those standards and as
well as breach of specific statutory provisions of a fair administrative Actions
Act constitutes the main grounds of reliance by a party seeking review orders.
Similarly breach of any other substantive and precedent and standards set out in
any written law as well as the traditional common law grounds for seeking
judicial review may also be invoked in proceedings for judicial review orders in
Kenya.
Following are the main laws upon which judicial review proceedings are based
and conducted.
1.articles 22,23,47 and 48 of Constitution of Kenya
2.Fair administration act no. 4 of 2015
3.law reform Act(cap 26)Sct 8 and 9.
4.The Civil procedures act Cap 21
5.Civil procedures rules of 2010 and as amended
6.law of limitations act (cap 22
7.Commission on administrative justice Act.
-Traditionally jurisdiction to hear and determine claims under Judicial review
was vested in the high court. However under the Fair administrative action act,
there is room for other courts specifically for a subordinate court to exercise
such jurisdiction if so mandated. This is recognized under Section 9 of the Fair
Administrative Action Act. For a subordinates court to have such jurisdiction it
has to be unformed to it by Article 22(13).
-Under Article 23 of the constitution of Kenya any person who is aggrieved by
an administrative decision or actions as defined in Section 2 of the commission

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on administrative justice Act, may institute Judicial review proceedings in the
high Court or subordinates court with Judicial review either:
a. In his or her private interests or in all interests
b.On behalf of another person who cannot act in their own name e.g. minor,
bankrupt, or a person suffering mental disability.
c.As a representative of or in the interest of a group or a class of persons.
d.In the public interest.
e.On behalf of an association of which the claimant is a member.

Types of administrative actions and JR proceedings

There are two main types of
1.Actions, decisions and inactions that affect an individual.
2 Actions, decisions and inactions that affect a group including an association in
the public.
In light of the above, Judicial review proceedings may be instituted by an
individual who is aggrieved by an administrative action, decision or by an
individual on behalf of another individual, group association or on behalf of the
public.

Grounds for Judicial Review

The fair administrative action act sets grounds for Judicial Review. The grounds
amplify those set out in Article 47(1,2 of the constitution. Grounds for
instituting Judicial Review of an administrative action affecting an individual
may be summarized as follows.
1) Breach of the requirements of Act 47(1 as read together with sc 4(1 of the
Fair Administrative Action Act. Since every person has an rights to a fair
administrative action (expeditious, efficient, lawful and procedurally fair) any
action or decision which falls short of this constitutional and legislative
requirements is amenable

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2)Breach of the aggrieved party's rights to be given written reasons for an
administrative action taken against him or her. The breach against the
provisions of Sc 4(2 of the Fair Administrative act and article 47(2 of the
constitution. In the constitution one Has a right to be given written reasons for
the intended or already taken action.
3) Breach of the procedural and substantive requirements of section 4(3) of
FAA. The said provisions ties in with articles 47(2).
Consequently, in case an admin action or decision which is intended to
adversely affect the rights or....
a. Prior and adequate notice of the nature or reasons for the proposed action.
b. An opportunity for the person to be heard and
c. Notice of the person's right to a review of the action or the rights to an
internal appeal against
d. A written statement of the reason for the decision
e. Notice of the right to a legal representation where applicable.
f. All information, materials and evidence to be relied upon in making the
decision.
4. Under section 4(4), during the proceedings leading to the making of the
decision or taking of an action, the administrator has a duty to ensure the
target person:
a. attends the proceedings in person or in the company of an expert of the law or
choice person.
b.The Person is heard.
c.Cross-examines witnesses who give evidence against him.
d. The person has a right to request for an Adjournment if necessary to obtain a
fair hearing.
5..In case of a judicial or quasi - judicial administrative body or agency, the
aggrieved person has the right to legal representations in such proceedings.
Eg under Article 168 of the constitution, a judge may be removed from office
after being investigated by a tribunal appointed by recommendation of Judicial

83
Service. During proceedings before a JSC or under a Tribunal, the concerned
judge has a right to legal representation. The same applies to proceedings of a
commission of inquiry established by the president under the provisions of the
commission of inquiry cap 102 laws of Kenya.
6.Under SC 4(6 of FAA, in case an administration is empowered by the law
to follow particular procedures, as long as the same follows the principles
under Article 47(2) of the constitution, the administrator can follow the
procedure empowered to do so and should not wait.
7.In addition to the above grounds, breach of any statutory provisions eg.
Under political parties Act etc can also be a ground to be relied on in
proceedings of Jr. This is subject to any aggrieved party exhausting any ADR
mechanism which may be applicable eg. Appealing to the tribunals of CS.

-The above grounds are an addition to those recognized under common law and
doctrine of equity . This rule is permitted under the Jr of the FAA which
provides that the act is in addition to and not in derogation to the principles of
common law doctrine of equity. In any of the above grounds, a successful
claimant may be granted any orders that are just and equitable as determined by
the HC or subordinates court with jurisdiction. The orders are set out in SC 11
of the FAA and . The list of orders is not exhaustive.

-The orders may be summarized as follows.

a.restraining orders /Injunctions
b. A directive for the administrator to give written reasons as required in under
section 6
c.prohibitory order
d. A quashing order
e. Remedy the matter to the administrator for reconsideration
f. An order compelling performance of a public duty owed in law by an admin
and for which
g. An order for a temporary Injunctions

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h. An award of costs Or pecuniary compensation.
I. Under Section 11(2), If the judicial review proceedings relate to a failure of
an administrator to take an administrative action the court may grant a
successful applicant any order that is just and equitable in the circumstances eg.
An order directing an action or decision to be taken, declaring the rights of the
parties with respect to the taking of the decision, a restraint order and orders for
the costs and other monetary compensations.
Administrative Procedural and substantive requirements governing the making
of decisions affecting the public are set out in sections 5 of the FAA. Breach of
the policy requirements can be a ground for seeking review orders provided the
proposed action or the action already taken is likely to or materially adversely
affect the rights of individuals.

For the proposed administrative action,the administration must comply

with the following:
a. Issue a public notice of the proposed action and invite public views
concerning the proportion. Consider all the views received and also Consider all
relevant and material acts.
b. In case administrators proceed to take the proposed action as opposed, then
the administrator has a duty to give written reasons:issue a public notice
indicating the internal mechanisms available
e. Issues a public notice indicating the internal mechanism to aggrieved persons
has to be challenged by any of Appeal.
f. The above procedural and substantive rights as well as as duties are in
addition to any other procedures available to an aggrieved party for ch

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LECTURE SIX
Judicial Review procedure and status prior to 27th August, 2010.
Prior to 27th August 2010,judicial review proceedings were governed by the
English common law and legislation. All grounds that could be pleaded by an
aggrieved party and procedures for instituting and prosecuting judicial review
proceedings in England applied in Kenya.
To a large extent, there were no statutory grounds that could be invoked by a
party seeking judicial review orders. The following is a summary of the features
of judicial review prior to the formulation of the constitution 2010 and the fair
administration actions act No. 4 of 2015.
In earnest, a judicial review dispensation that accords with the new
constitutional order following the promulgation of the constitution of 2010 took
effect in 2015 following the enactment of the fair administration actions act
which gave effect to article 47th of the constitution. The act received the prese
din.. And commenced on 17th June 2015. Till then, the old judicial review order
prevailed. The features of the order are summarized below:
1.It was a discretionary procedure hence a party seeking to apply for judicial
review orders was required to apply for leave of the high court to file a judicial
review application. The application for leave was made by way of chamber
summons under order 53 of the Civil Procedures Rules. It was made ex parte to
a judge in chambers supported by the statement indicating the grounds to be
relied upon in the judicial review applications and reliefs sought. An affidavit
indicating the facts and the statements was also required.
2.Under order 53 rule 1(3)the application had a duty to notify the registrar of
the high court of his intention to file for application of leave and launch the
application and all supporting documents latest a date before the date set for
application.
3.Applicants intended to seek judicial review orders of certiorari were obliged
to seek leave within six of the date of accrual of the cause of action or within
any shorter period as may be prescribed under any written rule.
4.Incase the proceedings sought to be impound or targeted for review were also
subject to a right of appeal, the court had the discretion of adjourning the
application for leave until the aggrieved party had exhausted, their appeal

86
channels and the appeal determined by the appellate court or until the time for
filing the appeal had lapsed and aggrieved party had not file the appeal. Section
9(8)of the law reform act.
5.Incase the judge granted the application for leave to institute judicial review
and proceedings, the judge had the discretion to order that the leave granted
operates as a stay of proceedings targeted for judicial review. Order 53 rule(4)
and section
6.Once leave was granted, the successful applicant had the duty to file the
application for judicial review orders by way of notice of motion within 21 days
of the day of grant and serve or cause service of the application on all
concerned parties. Order 53(3)of the Civil procedures rules.
7.During that period, judicial review applications could only be brought against
governments and public authorities. For that reason, parties aggrieved by the
decision of private authorities had no remedies under judicial review as
demonstrated in many cases including Miscellaneous applications 1723 of
2004 VS Kenya Cricket Association and 2 others. This was an application by
Moris Omondi for leave to apply for orders of Certiorari and prohibition against
proceedings and decisions of the Kenya Cricket Association and 2 others. The
application was granted by Justice Nyamu and accordingly, the applicant
brought judicial review proceedings which he filed on 21st December 2004. He
sought 4 orders :order of certiorari to quash the decision of the Kenya Cricket
association of 17th August 2004 and the decision and recommendations Kenya
Cricket player investigation dated 13th August 2004. An order of certiorari to
quash the decision of the Kenya Cricket association of 17th August 2004 and
decision and recommendation of Kenya.An order of Certiorari to quash the
decision of the Kenya Cricket Association and intellectual Cricket Council
refusing the applicant the right of appeal against the said decision. An order of
prohibition directed against the Kenya Cricket Association and International
Cricket Council For suspension and/or barring the player from player for 5
years.An order for costs.The application was opposed on a number of grounds
including the following that ;
a.Respondent are private bodies to which judicial review does not apply.
b.That there is an alternative remedy which had already been invoked by the
applicant.

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c.The first respondent cannot be sued because it's an association. That judicial
review is meant to address redress by public bodies.
After consideration of the arguments of both parties and the applicable law, the
high court appealed the.. Raised by the respondents and quashed the application
thereby ending the judicial review application.

8.Courts apply a restrictive approach with respect to standing or locus standing,

timeliness within which judicial review had to be brought, orders and a party
seeking reliefs. Eg Land vs Funyula lands tribunal and 2 others, the court
dismissed an application for leave to bring judicial review proceedings on
grounds that it was brought outside the six months statutory window.
Accordingly the court held that it could not exercise its discretion in favor of the
ex-parte applicants regardless of how much merit it held.
9.An applicant who was granted leave to bring judicial review proceedings was
obliged to rely on the grounds disclosed in the application for leave and the
reliefs stated in the said application for leave. The party was not at liberty to
seek new orders or introduce new grounds when seeking judicial review orders.
Khobesh Agency ltd VS Minister for Foreign affairs and international
relations and 4 others. It was held by the court that applicants could not rely on
a ground not stated in a statutory statement.
10.Under the 2015 act they were only there reliefs that could be sought. Order
of certiorari, mandamus and prohibition.
11.There were restrictions on locus standi. A party had to demonstrate to the
satisfaction of the court that they had personal stake or interest in the matter
which would be prejudiced of the review were to stand. There was no room for
public interest litigation as demonstrated in the following cases R vs minister
for information and broadcasting and Ahmed Jibril Ex parte East African
Television limited HC Civil application No. 03 1998., Wangari Maathai VS
Kenya Times Media trust HC Civil Case 54.03 of 1989.the court held that the
applicant had no locus to warrant judicial review proceedings against the
respondents.
12.There was confusion as to the nature of judicial review jurisdiction and
because it was discretionary, Judicial review orders were rarely granted because
the judiciary was sufficiently independent from the whims of the executive.

88
There was no security of tenure and the judges were not appointed by the JSC
but by the government.
13.That cases or applications were not determined on the basis of merits but
largely on procedural technicalities.

Judicial review post 2010.

Following the promulgation of the constitution of Kenya 2010 and the
subsequent enactment of the fair administration action act in May 2015 and it's
commenced on 17th June 2015,a new era of judicial review commenced in
Kenya. Following are the orders of the judicial..
1.Judicial review is anchored in the constitution under article 23(3) and is
therefore a constitutional relief available for enforcement on the bill of rights.
2.The foundations of Judicial review are in article 47 of the Constitution under
which every person has a right to fair administrative actions. Fairness means
that the actions are taken expeditiously, lawful, procedural fair and the process
used must be efficient. Under 23,22 and 165 of the constitution.
3.Judicial review procedures are three, namely the one obtained before 17th
June 2015,and two new ones involving use of a constitutional petition and
making of an Oral application before a judge or a magistrate with judicial
review and having the application reduced into writing by the judge or the
magistrate before hearing. Article 23,22 and any other articles of the
constitution of Kenya and then proceed to seek judicial review against the
parties which have aggrieved you.
4.Ground for seeking judicial review and the orders that may be granted have
gone above the three orders of mandamus, certiorari and prohibition to include
variants of the same orders which are set out in section 11 of the fair
administrative actions act. The orders are about 14.
5.Judicial review is a preferable avenue for enforcing the bill of rights under a
judicial review or under a constitutional petition. Many people prefer judicial
review application This is because of the broad grounds that a party may invoke
and the multiple orders that a successful party may be granted in judicial
review. Further Judicial review applications and appeals arising therefrom have
a statutory timeliness for their determination under section 8 which provides

89
that an application for review or any appeal must be heard within a period of 90
days from the date of filing. Under section of the fair administration act one can
make oral applications before a judge and article 53 of the constitution of
Kenya.
5.Judicial review is available for public and private entities and against
decisions, actions and proceedings of public and private entities unlike before
when it was only available to public authorities. This is provided for under
sections 3 of the Act, in terms of the scope of applications. Which provides that
the act shall apply to all state and non - state agencies.
6.There is a broad provision on locus standi under articles 22 therefore any
person can bring an application, as a personal interest or public interest, a legal
disability, mental disability.
7.Judicial review jurisdiction is available not only with the high court but also
other courts upon which judicial review jurisdiction has been conferred under
any written law. Section 9 of the fair administrative actions act.
8.Orders made by the high court in exercise of judicial review jurisdiction
applications may be appealed in the court of appeal as provided by Section 9(5)
of the fair administrative actions act.
9.Under the laws governing administrative actions principles and procedures for
making decisions affecting individuals and the public have been set out in
Sections 4,5, 6 and 7 of the fair administrative actions act. Non compliance with
principles and procedures are some of the grounds that may be invoked by a
party in judicial review proceedings.
10.The rights of subjects of administrative actions have also been articulated in
the constitution especially under article 47(1,2) as well as sections 4,5, 6,7 of
the fair administrative actions act.
11.Provisions have also been made for review of Administrative actions by a
tribunal in exercise of judicial review jurisdiction conferred upon it under any
written law. Recognized under Article 47 and sections 7 of the fair
administrative actions act.
12.Judicial review procedures are of three types; statutory under the fair
administration actions act,and under the law reform act and the civil under order
53 of CPR and constitutional petition pursuant to article 23, 47,48, 49-51.

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 13.Confusion reigns in judicial circles regarding judicial review,
reliefs,jurisdiction Eg. Nation Media Group Ltd VS Cradle, the children's
foundations suing through Geoffrey Manyag 2015, the court made the
following observations, judicial review is invoked under order 53 of the CPR
while jurisdiction of the court to enforce fundamental rights is invoked under
article 23 and 258 of the constitution of Kenya.

Assignment case law

Read the case, identify the parties, identify the procedures that were used to
institute the proceedings, the grounds relied upon by the parties, reliefs sought
by the parties,issues for determination, and the reasons for the decisions.
1.R VS Kenya Cricket association(Republic v Kenya Cricket Association &
2 others [2006] eKLR).
2. Peter Muchiri Muhura VS Teacher Service Commissions
3. R VS Dpp and another ex parte Jamal kamani and 2 others 2015.
4.Meshack Agemo Omondi VS Eldoret Municipal council and another 2012.
5.Alex malica and 7 others VS Alias Wamita and 4 others 2012
6.Wambui Mambu and 2 others VS Limuru County club and 17 others 2014.
7.R vs Commission of Inquiry into the Goldenburg Case Ex parte George
Saitoti.
JUDICIAL REVIEW ASSIGNMENT
1.R VS Kenya Cricket association(Republic v Kenya Cricket Association & 2 Others
[2006] eKLR)
Parties:
Applicant: Maurice Omondi Odumbe Odhiambo
1st Respondent: Kenya Cricket Association
2nd Respondent: Hon. Mr. Justice Ahmed Ebrahim
3rd Respondent: International Cricket Council (ICC)
Procedures:
Leave was granted on December 16, 2004, by Hon Justice Nyamu for the applicant to bring
Judicial Review proceedings.
The substantive motion was filed on December 21, 2004.

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The application sought orders of certiorari and prohibition against the respondents.
The 2nd Respondent withdrew from the case.
On July 20, 2005, the 1st and 3rd Respondents filed skeleton arguments, raising a preliminary
objection on jurisdiction, which was heard on April 4, 2006.
Grounds Relied Upon by the Parties:
The Respondents argued that Judicial Review does not apply to private bodies.
The existence of an alternative remedy, as the applicant had invoked an official enquiry.
The 1st Respondent, being a club, cannot be sued in its name.
Reliefs Sought by the Parties:
An order of certiorari to quash the decision of Kenya Cricket Association dated August 17, 2004,
and the player conduct investigation decision dated August 13, 2004.
An order of certiorari to quash the decision of Kenya Cricket Association and International
Cricket Council dated August 19, 2004, refusing the right of appeal.
An order of Prohibition against Kenya Cricket Association and International Cricket Council for
suspending or barring the applicant from playing Cricket for 5 years or at all.
Costs of the application to be in the cause.
Issues for Determination:
Whether the Respondents, as private bodies, are amenable to Judicial Review.
Whether the alternative remedy invoked by the applicant bars Judicial Review.
Whether the 1st Respondent, being a club, can be sued in its name.
Reasons for the Decision:
The court found that the Respondents are private bodies and not subject to Judicial Review.
The alternative remedy invoked by the applicant was considered, and the court held that the
existence of an alternative remedy is not a bar to the grant of certiorari in Kenya.
The 1st Respondent, being a club and not a legal entity, was struck off as a party.
The objection raised by the Respondents was upheld, and the proceedings were struck out. The
court ordered costs to the Respondents

2. Peter Muchiri Muhura VS Teacher Service Commissions

Teachers Service Commission v Muchiri Kiraithe [2021] eKLR
Parties:
Applicant: Teachers Service Commission
Respondent: Muchiri Kiraithe
Procedures:
The applicant filed a Notice of Motion on April 6, 2021, under Article 159 of the
Constitution of Kenya 2010, Section 3, 3A, and 3B of the Appellate Jurisdiction Act, as well
as rules 4, 41, 42, 43, and 47 of the relevant court rules.

92
The application sought leave to file and serve a notice of appeal out of time.
Grounds Relied Upon by the Parties:
The applicant argued that its counsel was indisposed due to COVID-19-related symptoms at
the time of judgment.
The appointed substitute counsel was not present during the judgment due to another matter.
The court clerk, responsible for filing the notice of appeal, inadvertently omitted to file it
despite instructions.
The delay was explained as not inordinate or deliberate and was excusable.
The respondent contended that the applicant failed to provide evidence of counsel's
indisposition and argued against the reasons for the delay.
Reliefs Sought by the Parties:The applicant sought leave to file and serve a notice of appeal
out of time.
The respondent opposed the application.
Issues for Determination:
Whether the reasons for the delay in filing the notice of appeal were justified.
The chances of success of the intended appeal.
The degree of prejudice to the respondent if the application is allowed.
Reasons for the Decision:
The court considered the length and reasons for the delay, chances of success of the intended
appeal, and the degree of prejudice to the respondent.
The court found that the reasons for the delay, including counsel's indisposition and
disruptions due to the COVID-19 pandemic, were plausible.
The court, guided by precedent, acknowledged that it is not its role to definitively determine
the merits of the intended appeal but considered the draft memorandum of appeal as
indicating bona fide issues for determination.
The court weighed the degree of prejudice to the respondent and determined that allowing the
application was justifiable, and any potential prejudice to the respondent could be
compensated in damages.
Consequently, the court allowed the application, directing the applicant to file a proper notice
of appeal within fourteen days and ordered the applicant to bear the costs of the application.
3.Republic v Director of Public Prosecution & another Ex Parte Chamanlal Vrajlal
Kamani & 2 others [2015] eKLR

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Republic of Kenya v. The Director of Public Prosecution
Parties:
Applicant: Republic of Kenya
Respondent: The Director of Public Prosecution
Interested Party: The Ethics and Anti-Corruption Commission
Ex Parte Applicants: Chamanlal Vrajlal Kamani, Deepak Chamanlal Kamani, Rashmi
Chamanlal Kamani
Procedures Used to Institute Proceedings:
The proceedings were initiated by way of a Motion dated 17th March 2015.
The ex parte applicants, Chamanlal Vrajlal Kamani and others, sought several orders through
the motion.
Grounds Relied Upon by the Parties:
The case involves the infamous "Anglo leasing and Anglo leasing like" contracts, considered
significant events in Kenya's political history.
The applicants were charged with criminal offenses related to economic crimes and
fraudulent acquisition of public property.
The applicants challenged the decision of the Director of Public Prosecution to prosecute
them.
Reliefs Sought by the Parties:
An order of CERTIORARI to quash the decision to prosecute the applicants.
A DECLARATION that the decision to criminalize commercial contracts amounts to an
abuse of power.
A DECLARATION that the contracts between the government and the companies (Infotalent
Limited and Sound Day Corporation) are valid and binding.
Another order of CERTIORARI to terminate the prosecution.
An order of PROHIBITION against the Director of Public Prosecution, preventing them
from proceeding with the criminal proceedings.
Costs of the application.
Issues for Determination:
Whether the decision to prosecute based on commercial contracts is an abuse of power.
Whether the contracts between the government and the companies are valid and binding.

94
Whether the prosecution should be terminated through a writ of certiorari.
Whether a prohibition order should be issued against the Director of Public Prosecution.
The validity of the charges brought against the applicants.
Reasons for the Decisions:
The court found no merit in the application.
Legitimate expectation and estoppel cannot operate against the law.
The termination of a contract does not necessarily absolve parties from criminal charges.
The court must not interfere with criminal proceedings unless there is evidence of abuse.
The court cannot transform itself into a trial court and minutely examine the merits of the
prosecution's case.
The applicants did not demonstrate that the circumstances render a fair trial impossible.

4. Meshack Angeng’o Omondi v Eldoret Municipal Council & another [2012] eKLR
Parties:
Claimant: Meshack Angeng’o Omondi
1st Respondent: Eldoret Municipal Council
2nd Respondent: Not explicitly mentioned in the provided text
Procedures:
Claimant filed a memorandum of claim on September 22, 2009, through Limo & Company
Advocates.
2nd Respondent replied to the memorandum of claim on February 22, 2010, through
Nyaundi Tuiyott and Company Advocates.
2nd Respondent filed a notice of preliminary objection on February 18, 2010, seeking
dismissal of the claim.
1st Respondent filed a statement of Defence on February 17, 2010, and also filed a Notice of
Preliminary Objection on the same date.
Preliminary objections were heard on April 27, 2010.
Grounds Relied Upon by the Respondents:The claim was time-barred under Section 90 of
the Employment Act, 2007.
Res judicata based on a previous High Court decision (High Court Miscellaneous Civil
Application No. 97 of 2003).

95
No claim under the Law of Contract (Common Law) as it is time-barred.
The claim could not be sustained under the Trade Disputes Act, Cap. 234, as the statute was
repealed, and the claim would be out of time.
The Claimant’s claim against the 1st Respondent violated Section 12 of the Local
Government Act.
Reliefs Sought by the Respondents:
Striking out or dismissal of the claim with costs.
Assertion that the claim is frivolous and vexatious, an abuse of court process, and
time-barred.
Dismissal of the claim based on Res judicata.
Issues for Determination:
Whether the claim is Res judicata.
Whether the claim is time-barred.
Reasons for the Decision:
The court found that the doctrine of Res judicata does not apply as the earlier decision was a
judicial review application, and the current claim seeks different remedies.
The court held that the cause of action falls under the Employment Act, 2007, and is
governed by Section 90, which requires claims to be filed within three years. Since the claim
was filed over seven years after the cause of action, it is time-barred.
Consequently, the court upheld the preliminary objections, struck out the memorandum of
claim, and awarded costs to the Respondents.
Conclusion:
The court ruled in favor of the Respondents, holding that the claim was both time-barred and
not subject to the doctrine of Res judicata. The memorandum of claim was struck out, and
costs were awarded to the Respondents.

5.Alex Malikhe Wafubwa & 7 Others v Elias Nambakha Wamita & 4 Others [2012]
eKLR
Parties:
Petitioners: Alex Malikhe Wafubwa and 7 others
Respondents: Elias Nambakha Wamita and 4 others
Procedures:

96
Institution of Proceedings: The proceedings were instituted through a petition filed in court.
Jurisdiction Determination: The court was tasked with determining whether it had
jurisdiction to adjudicate on the petition, specifically examining if the issues fell under the
scope of section 76 of the Co-operative Societies Act.
Legal Arguments: The parties presented arguments regarding the interpretation of section 76
of the Co-operative Societies Act and whether the disputes raised in the petition fell within
its jurisdiction.
Consideration of Claims: The court analyzed the nature and character of the claims in the
petition, focusing on whether they constituted disputes within the meaning of section 76 of
the Act.
Reliefs Sought: The petitioners sought several declarations, including the unconstitutional,
unlawful, and illegitimate continuation of office by the respondents, nullification of activities
after the term expiry, and a mandatory injunction for the conduct of elections.
Appeal Request: After the court's decision, the respondents sought leave to appeal,
requesting a temporary stay of the decision pending the appeal.
Grounds Relied Upon:petitioners: Alleged that the respondents' continued holding of
office after the lapse of one year since their term expired was contrary to the law and
unconstitutional. They also claimed a violation of their right to vote and elect office bearers
due to the failure to convene general and special meetings.Constitutional Rights: The
Petitioners argue that the dispute involves their constitutional right to vote, falling under
Article 38(2) of the Constitution. Court's Authority: They assert that the High Court has the
authority, under Article 165(3)(a) of the Constitution, to issue the reliefs sought, and the
Tribunal's jurisdiction is not applicable to matters outside the Co-operative Societies Act.
Respondents: Argued that the disputes raised did not fall within the jurisdiction of the court
and should be referred to the Co-operative Tribunal as per section 76 of the Co-operative
Societies Act.
Issues for Determination: Whether the disputes raised in the petition fell within the
jurisdiction of the court or should be referred to the Co-operative Tribunal under section 76
of the Co-operative Societies Act. Whether the reliefs sought by the petitioners were
appropriate in the context of the Cooperative Societies Act.
Reasons for Decision: The court, through a careful analysis of the claims in the petition,
determined that the disputes related to elections, illegal holding of office, and failure to
convene meetings, which were not within the jurisdiction of the Co-operative Tribunal as
specified in section 76 of the Act. Emphasized the importance of ensuring proper analysis to
determine whether a dispute falls within the jurisdiction of the Tribunal to avoid prejudicing
the right of access to justice. Acknowledged that not all grievances under the Cooperative
Societies Act are disputes within the jurisdiction of the Tribunal.

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6.Wambui Mambu and 2 others VS Limuru County club and 17 others 2014.
Rose Wangui Mambo & 2 others v Limuru Country Club & 17 others [2014] eKLR
Parties:
Petitioners: Rose Wangui Mambo and 2 others
Respondents: Limuru Country Club (1st respondent), 2nd to 9th respondents (individuals),
and Kenya Golf Union (KGU) and Kenya Ladies Golf Union (KLGU)
Procedures:The proceedings were initiated by filing a petition in court.
The court documents cite relevant constitutional provisions, including Articles 20(3), 22, 23,
27, and 259, to support the petitioners' claims. The case was certified to raise constitutional
issues of public interest under Article 165.
Grounds Relied Upon:
Discrimination against female members through a by-law amendment. Violation of
fundamental rights and freedoms enshrined in the Constitution. Flawed disciplinary process
and violation of due process.
The petitioners argue that the respondents, including Limuru Country Club, violated their
rights as guaranteed by the Constitution of Kenya.
The respondents assert that the court lacks jurisdiction and that alternative dispute resolution
mechanisms within the Club should have been exhausted before resorting to the court.

Reliefs Sought:The petitioners seek relief based on the violation of their rights, emphasizing
the application of Articles 20(3), 22, and 23 of the Constitution.Declaration of the
discriminatory by-law as null and void. Declaration that the removal of the 1st petitioner and
suspension/expulsion of the 2nd and 3rd petitioners violated constitutional rights. Orders to
quash the expulsion and reinstate the petitioners. Orders directing respondents to reinstate
petitioners' handicaps and official positions. Orders for investigation and appropriate
disciplinary action. Order of compensation.
The respondents argue for the dismissal of the case, asserting that alternative dispute
resolution mechanisms should have been pursued.
Issues for Determination:Whether the by-law amendment is discriminatory and violates the
Constitution.Whether the actions of Limuru Country Club and the respondents violated the
petitioners' rights to equality and non-discrimination as provided in Article 27 of the
Constitution.
Whether the disciplinary process violated the petitioners' constitutional rights.

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Whether the Court has jurisdiction to intervene in private members' club affairs.Whether the
court has jurisdiction to hear the matter despite the existence of alternative dispute resolution
mechanisms.
Whether the petitioners should have exhausted internal dispute resolution mechanisms within
Limuru Country Club before approaching the court.
Decision Reasons:
The AG concurred that the by-law amendment violated Article 27.
The Court considered private members' clubs not exempt from constitutional provisions.
The respondents opposed the petition, arguing against the claims made by the petitioners.
The court addresses challenges to its jurisdiction:
a. Affirms its jurisdiction under Article 165(3) to determine issues of rights violation.
b. Rejects the argument that private entities are immune, asserting that constitutional rights
apply horizontally and vertically.
c. Emphasizes the duty of the court to protect, promote, and fulfill the Bill of Rights, even in
private relationships.
d. Asserts that the Constitution should be interpreted to promote its purposes, values, and
principles.
e. Concludes that private entities should not be allowed to escape constitutional
accountability, and their "privacy" cannot bar the court from assuming jurisdiction in cases of
alleged fundamental rights breaches

LECTURE SEVEN
In Peter Muchiri vs Teacher Service Commission, the high court reasoned that
the person who has filed a constitution petition is entitled to ask for both
compensatory relief and orders of judicial review in the same pleading. In the
view of the court, the constitution of Kenya, 2010, had breached the gap
between judicial review proceedings and ordinary actions, thereby opening an
avenue to access justice and all stipulated remedies in the same proceedings.
In Meshack vs Eldoret Municipal Council And Another 2012 eKLR, the high
court expressed the view that the new constitutional order prescribes and favors
a universal approach towards the realization of the rights and fundamental
freedoms.

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In Alex Malikha Wasugwa and 7 others vs Alias wamita and 4 others, 2012
eklr, the high court held that a party could apply for judicial review orders in a
constitutional petition.
Owing to the confusion in some cases, the high court has taken the liberty to
suggest that section 9 of the law reform act needs to be amended. In Gilbert
Hezekiah vs Advocates disciplinary Committee 2015,at paragraph 19, the court
suggested that section 9 of the law reform act should be amended to provide for
extension of Time in cases where adherence to time propagates a miscarriage of
justice. For example where a decision is made and for some reasons is not made
public with the result that the person affected thereby are not aware of the
decision until after the expiry of the said limitations period.
Courts have tended to embrace a sensible and flexible approach in judicial
review application in line with the provisions of article 159(2)d which sets out
guiding principles for administration of justice. The principle include non
discrimination and administration of justice without undue regard to procedural
technicalities. For that reason, a plethora of cases laws confirms that judicial
review orders are available or can be granted in a constitutional petition, in a
judicial review application commenced under the law reform commission, order
53 and other enabling laws and under proceedings commenced according to the
fair administrative action act procedure specifically under part 3,meaning
section 7-11.Whichever procedure a party adopts there is evidence that courts
are inclined to dispense substantive justice instead of procedural justice
especially because judicial review is one of the reliefs that is recognized under
article 23 of the constitution of Kenya for enforcing the Bill of Rights.
In Rose Wangui Mambo and 2 others vs Limuru country club and 17 others
(2014) eKLR,the High Court considered a constitutional petition No. 160 of
2013 which arose from internal wrangles in a private members club known as
the Limuru Country club, the main issue for determination by the court was
whether the honorable court had jurisdiction to intervene in decisions of
members private club and in particular to what extent the honorable court had
jurisdiction to address.. The petitioners challenged a resolution by the board of
directors of the club which amended part of the clubs by-laws. According to
petitioners, the amendment discriminates against the female membership
contrary to the constitution of the club and in breach of their fundamental rights
and freedoms. The petitioners also took issue of the disciplinary process taken

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by the second to the nine respondents which resulted in suspension and
expulsion of their handicaps, which they claim did not accord with the due
process and was in violation of their fundamental rights and freedoms. After
reviewing the pleadings and submission of the parties to the case, the high court
identified three issues for determinations as follows.
a) the question of jurisdiction. Whether the court has jurisdiction to conduct an
inquiry into the affairs of a private members club
b) discrimination and equality. Whether the impugned by-law is discriminatory
and offends the Constitution of Kenya provisions.
c)Disciplinary process. The constitutional it of the disciplinary process
employed by the respondent.
The court held in that particular case, the court issued a declaration that the
resolution passed by the board members and subsequently approved excluding
the participation of female members is contrary to articles 47 of the constitution
of Kenya and is the unconstitutional null and void and the court quashed that
resolution. The court issued an order of mandamus directed to the first
respondent to reinstate the petitioners to full membership of the club with all
attendance and privileges. The court directed Kenya Ladies Golf Union to
ensure that orders 1 and 2 above are implemented in so far as it affects the
membership or handicaps of Ms Rose Mambo and Ms Caroline Wangai Ngugi.
On appeal by Limuru County club and six others vs Rose Wangui Mambo and
15 others, in Civil Appeal of 2014,the court of appeal at Nairobi dismissed the
appeal with costs for want of merit. It simply upheld the decision of the High
Court.
Statutory Grounds for Judicial Review under the Current Constitutional
dispensation in Kenya.
The Constitution and various acts of parliament sets standards for judicial
making and administrative making. The standards are both substantive and
procedural. Further the constitution and various acts of parliament sets out
fundamental freedoms and rights of an individual as well as statutory rights of
persons.
The same laws also set out duties or obligations that are due from decision
makers to persons who are the subject of a decision. In particular where a
decision is likely to adversely affect or has already adversely affected the

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interest of the subject. The subject is entitled to written reasons for the adverse
decisions and information on procedures and avenues for challenging the
adverse decisions and the applicable timeliness.
The fair administrative actions act has two categories of administrative actions.
Namely :
a) actions that affect the rights of individuals.
b) actions that affect the rights or interests of the public
For each category of administrative action, the fair administration actions act set
out minimum standards, both substantive and procedural, so any departure from
those standards by a decision maker will constitute a ground for challenging the
decision in judicial review proceedings.
What is an administrative action?under section 2 of the fair administrative
action act, administrative actions is interpreted in an open manner to cover the
following:
a) the powers, actions and duties exercised by authorities or quasi judicial
tribunals.
b) any act, commission of decisions of any person or authority that affects the
legal rights or interests of any person to which such actions relate. Decisions
means any administrative or quasi judicial decisions already made or proposed
to be made as the case may be. In the same section, administrative actions is
defined to mean any person who takes an administration action/makes a
decision.In the same section, failure in relation to a refusal to the taking of a
decision under the enabling law.In the same section empowering provision is
broadly interpreted to mean a law, a rule of common law, customary law or an
agreement, instrument in terms of which an administrative actions is taken
/purported to be taken. (The Cabinet secretary responsible for administration of
justice in Kenya is the Attorney General)
In addition to the above definitions of administrative actions, the commission
on Administrative Justice Act, No. 23 of 2011(Section 2),defines administrative
actions in an open ended manner, as follows: any actions relating to matters of
administrative actions and includes
a) A decision made or an act carried in the public service

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b)A failure to act in discharge of a public duty required for a public service.
c)The making of A recommendation to a CS in the public service.
d) An action made pursuant to a recommendation to the C. S
Based on the provisions of the constitution of Kenya 2010,specifically article
47,the fair administrative action act, the commissions on administrative justice
Act No. 23 of 2011 and other enabling laws, following are the main grounds
that may be invoked by a party in judicial review proceedings :
1.Breach of fundamental rights and freedoms of a party or an individual as per
Article 22 and 23 of the constitution of Kenya. If Jkusa is de-registered you will
invoke article 36 for the right of association.
2.Breach of a party's right to fair administrative action contrary to articles 47(1)
(2)of the constitution. The decision taken must be proportionate, fair and
reasonable. If the decision is adverse then reasons must be provided in writing.
3.Breach of the common law principles on probity of administrative actions.eg
failure to uphold the rules of natural justice, making decisions based on
extraneous considerations, unreasonableness in terms of the Wednesbury, fail to
consider relevant considerations, taking a decision on the basis of bad faith,
breach of a person's legitimate expectation, and also ultra bites.
4.Breach of statutory standards and procedures governing administrative actions
affecting individuals. Those requirements are set out in Section 4 of the fair
administrative actions act. And article 47(2).Before an adverse decision is taken
against a pe, prior notice must be given to the person. The person should be
given a notice that they have a right to cross examine the witnesses. The person
must be given an opportunity to attend the proceedings and no proceedings
should be heard in absentia. If it is a body in which lawyers or representatives
are allowed, the person is entitled to a representation.
5.Breach of procedural and substantive requirements pertaining to making of
administrative actions and decisions that affect the republic. Those requirements
are set out in Section 5 of the fair administrative actions act. If an administrator
intends or proposes to take an administrative actions likely to materially and
adversely affect the legal rights or interest of a group of persons or the general
public, an administrator must comply with the provisions of sections 5 of Fair
administrative actions act, issue a public notice and invite public views,

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consider all the views received and all the relevant materials and facts. And if
he takes the actions, give reasons for the same and give the public an
opportunity to challenge the decision and the mechanism to challenge the
decision.
6.Whether a decision has adversely and materially affected the rights and
interests of an individual, a group or the general public, under section 6 of the
Fair Administrative Actions Act, Any person aggrieved by the decision is
entitled to supply the reasons necessary to enable the person to challenge the
decision by way of an appeal or review pursuit to the provision of the section 5
of the act. The decision must be comprehensive and include the reasons for the
decision and all of the documents must also be furnished to the aggrieved party
within 30 days of the receipt of the request to provide the information. The
information must be provided in writing, not orally or on the phone. In case the
administrator does not provide the reason for the decision, section 6(4) grants
the court hearing judicial review proceedings to presume that the decision was
taken without any good reasons or without any reasons whatsoever. Section
6(5)permits using a different procedure for the request for the information for
reasons of the decisions as long as the procedure adopted is within the confines
of the law.
Assignment
Go and Read Section 7(2) for other statutory grounds. Grounds set out in
Section 7 (2).please list them in summary and at the same time the can pass for
Ratio decidendi(Reasons for the decision). Also read on reliefs.
For each of these get a case that supports those reasoning.

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