Atp 101 - F

JUDICIAL REVIEW
1. INTRODUCTION:
 The origin and development of the doctrine of judicial review is the American Supreme Court (1803),
although there is no express provision in the American Constitution for the judicial review.
 In Marbury v. Madison,1 the U. S. Supreme Court specifically claimed it had the power of judicial review
and it could review the Constitutionality of the Acts passed by the Congress. 2
 The power of judicial review is unequivocally rooted and has explicit sanction in the new COK. 3 The
constitution has created an independent judiciary which is vested with among other powers, the power of
judicial review to determine the legality of administrative actions and the validity of legislations. 4
 The Law: Judicial review is exercised pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya,
2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53
of the Civil Procedure Rules, 2010.
2. CONCEPT AND MEANING OF THE TERM ‘JUDICIAL REVIEW’:
 Judicial review primarily refers to the authority of the Court to:
a) review both the constitutionality or validity of legislative Acts;
b) pass upon the constitutionality or validity of executive and administrative acts5 and to disregard or
direct the disregard of such Acts as are held to be unconstitutional or violative of applicable Statutes in
order to uphold the rule of law.6
 In Republic v. The Judicial Service Commission & Another ex-parte Joyce Manyasi,7 Justice W. K. Korir
has also held that the purpose of judicial review is mainly to ensure that public bodies do not abuse their
powers and officials perform their functions in good faith, without malice and in accordance with the law.
3. GROUNDS FOR JUDICIAL REVIEW:
In Council of Civil Service Union,8 Lord Diplock has suggested the following three-fold classification of
the various grounds on which an administrative decision can be reviewed by a Court:
i) Irrationality: Irrationality denotes unreasonableness in the sense of Wednesbury unreasonableness
principle in that it applies to a decision which is so outrageous in its defiance of logic or of accepted moral
standards that no sensible person in his mind to the question to be decided could have arrived at it. Whether
a decision falls within this category is a question that judges squarely need to answer after sensibly
determining that the claimant is able to provide a strong clear case.
ii) Procedural impropriety: Procedural impropriety refers to failure of the decision making authority to
observe procedural rules including rules of natural justice or fairness wherever they are applicable. For e.g.,
1
1 Cranch 137: 2 L Ed 60.
2
Faiz Pan Mohamad, ‘General Principle of Judicial Review on Administrative Action in Indian Legal System’ Law Journal, 20th September
2007.
3
See, for e.g., Arts.2, 20, 23, 47 & 163 of the Constitution of Kenya, 2010. The High Courts in Kenya also have powers of judicial review arising
from an Acts of Parliament namely, the Law Reform Act, Cap 26, Administration of Justice (Miscellaneous Provisions) Act, 1938, and the
supporting Order LIII of the Civil Procedure Rules, Cap 21.
4
Chapter Ten, the Constitution of Kenya, 2010.
5
Sathe S. P., ‘Judicial Activism: The Indian Experience,’ Washington University Journal of Law & Policy, Volume 6, [2001] p.39.
6
Gichira Kibara, ‘Reforming the Judiciary: Responsiveness and Accountability of the Judiciary,’ A study under the auspices of the Friedrich
Ebert Stiftung (FES) and University of Nairobi’s Department of Political Science & Public Administration, Occasional Paper Series, Nairobi,
presented at the FES and UoN workshop, Nairobi Safari Club, November 2011.
7
(2012) eKLR.
8
Council of Civil Service Union v. Minister for Civil Services, (1985) 1 AC 374.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
1
 Failure to give each party to a dispute an opportunity to be heard: A competent authority is
mandated to give each party to the dispute a fair opportunity to put their case.
 Bias: Any sign of bias on the part of the competent authority may call for judicial intervention.
Generally, bias arises if a person is a relative of one of the parties, or has had a past professional
association with one of the parties.
 Failure to consult properly: It has been observed that for consultation to be held proper adequate time
must be given for the purpose and the product of consultation must be consciously taken into account
when the ultimate decision is taken.
 Failure to give adequate reasons: The duty to give reasons principally arises where it is expressly
required in legislation; where it is called for in fairness, under the duty of candour owed by a body
under challenge and where a response which is unreasoned may be seen as unreasonable. Where there
is a call to give reasons, a body is obliged to give reasons which are proper, adequate and intelligible to
enable the persons affected to know why they have won or lost.
 Legitimate expectation: The doctrine of legitimate expectation arises where a public body has made a
promise of a benefit, and it then goes back on this promise. Such promise amount to an abuse of power
and thus calls for judicial intervention. It therefore derives from need to secure certainty and
predictability in executive actions.
iii) Illegality: The authority making decisions is required to understand correctly the law that regulates his/her
decision-making power and must therefore, give effect to it by ensuring that his decisions are within his/her
legal power.9 Illegality thus, arise as follows:
 When the decision-maker acts ultra vires: A decision-maker acts ultra vires if he acts beyond his
prescribed powers, or where he does not follow a particular procedure already prescribed in a Statute,
etc. The police and other competent authorities in the criminal justice system should exercise their
powers within the confines of the law. Every exercise of power by such authorities that derogates from
legislative intent is considered ultra vires. There are two types of ultra vires:
i. Substantive ultra vires: It is where an authority has done or decides to do an act knowing that it
lacks legal capacity or lawful jurisdiction to do it;
ii. Procedural ultra vires: It is where an authority authorized to do something, while doing it, it fails
to meet some requirement attached to the lawful exercise of the power
 Unlawfully delegating power or fettering discretion: Where a legislation confers power on a specified
individual or body, the power cannot be delegated to another person or body.10
 Irrelevant considerations: A claim for judicial review can also lie where a competent authority has
either disregarded a relevant consideration, or taken into account an irrelevant consideration when
reaching a decision.
 Abuse of power: This can take the form of failure to exercise power, or exercising power for improper
purpose, etc.
9
Captain Geoffrey Kujoga Murungi v. Attorney General, Misc Civil App. No. 293 of 1993.
10
Lumumba P. L. O., An Outline of Judicial Review in Kenya 58-83, (University of Nairobi, 1999).
Dr. Ratemo Tom
2
 Unlawfully delegating power or fettering discretion: Where a legislation confers power on a specified
individual or body, the power cannot be delegated to another person or body.
 Bad faith: Powers vested in competent authority must be exercised in good faith. A decision that
results from an exercise of power in bad faith is unfair and lends itself to being quashed by certiorari.
For instance, ill motives actuated a public officer to do an illegal act.
 Error of law or on the fact of record: It can also lead to judicial review.
 Natural justice: Failure of an authority to follow principles of natural justice.
 Proportionality: This seeks to strike a balance between adverse effects of an administrative
action/decision has on rights and liberties of individual and public interest.11
4. JUDICIAL REVIEW ORDERS:
Judicial review is used for seeking:
a) a mandatory order (i.e., an order requiring a public body to do something, also known as an order of
mandamus); or
b) a prohibiting order (i.e., an order preventing the public body from doing something, also known as an
order of prohibition) i.e., the High Court can direct an inferior Court or Tribunal or body from acting
in excess of jurisdiction, or in contravention of the law; or
c) a quashing order (i.e., an order quashing the public body’s decision, also known as an order of
certiorari) i.e., decisions of an inferior Court and Tribunal; or
d) a declaration and/or damages.
5. ILLUSTRATION:
The Director of Public Prosecutions, Madam Winnie Mutali lives in Karen View Estate, Kajiado County
(also known as Gate D Estate). In 1982 while undertaking her studies at the Kenya School of Law, Madam
Winnie gave birth to a baby boy. The boy was named Bonfesc Mutegi Mutali, now aged 34 years.
On 23rd May 2012 at the said Estate, Bonfesc Mutegi fought his neighbour’s son, one Salim O’kubasu. It is
reported that the fight was triggered by a quarrel the two had at a local bar called ‘The Galaxy’ over the
English Premier League results. It was reported that Bonfesc Mutegi’s team, Arsenal Footbal Club,
conceded 8 ‘painful’ goals from their perennial rivals Manchester United Football Club. After the football
match loss, O’kubasu is said to have loudly celebrated the victory team, Manchester United to the chagrin
of Bonfesc. It is at this point that Bonfesc aimed a bottle of a drink called Yokozuna at O’kubasu’s head
missing it by a whisker. He (Bonfesc) then lurched at O’kubasu and wrestled him to the ground. O’kubasu,
an active and practising martial arts guru disentangled himself from Bonfesc’s grip and gave him what was
described by an eye witness as ‘a thorough beating.’
The DPP was infuriated to learn that although his son started the fight, he appeared not to have been ‘man
enough’ because he was humiliated by the beating at the hands of O’kubasu, in self-defence. The DPP
promised to teach O’kubasu an unforgettable lesson on what she called ‘how to respect children of those
who matter in the society.’
On 24th of May 2015, O’kubasu’s father one Watson Kingori and his mother, one Ms. Brenda Yusuf were
arrested on the DPP’s instructions allegedly for failing to teach their son ‘good manners.’ They were
whisked away and locked up at Rongai Police Station.
On 26th May 2015, they were charged in Court in Kibera before the Chief Magistrate for creating
disturbance in Karen View Estate on 23rd May 2015 contrary to Section 95 of the Penal Code, Cap 63.
Particulars of the offence read that on 23 rd May 2015 at The Galaxy Bar at Karen View Estate in Kajiado
County, they allowed their son to engage in a fight with Bonfesc which resulted in a breach of peace.
Their defence counsel, the flamboyant Mr. Res Ipsa Loquitor applied and obtained copies of all documents
of the prosecution’s file. By sheer coincidence and mistake, the DPP’s note of instructions to the State
Counsel was availed to the defence. In the said instruction note, the DPP had laid it out clearly to the
11
Kanyingi v. TLB, Misc. Civil App. 1214/04.
Dr. Ratemo Tom
3
prosecuting State Counsel. The prosecuting counsel was supposed to punish the accused persons for the
alleged bad manners of their son. At paragraph two of the said memo, the DPP told the prosecuting State
Counsel that she had no evidence at all as the offence actually never took place.
Draft the necessary judicial review papers to protect Mr. Watson Kingori and Ms. Brenda Yusuf.
ANSWER:
The following are the required documents:
a) Certificate of urgency: It helps to jump the que. It must not only bring out the urgency of the matter but
should also be brief and clearly state the grounds of urgency.
b) Chamber summons: It must have four principle prayers: i) Ask the Court to certify the application as
urgent; ii) Ask the Court to grant leave for the applicant to apply for judicial review orders i.e., certiorari;
iii) Leave granted to operate as a stay i.e., for order of arrest; iv) Costs to be granted.
c) Verifying affidavit: It verifies the grounds for adducing evidence. Such evidence should be attached i.e.,
Gazette Notice, Letters issued by an officer. It must be exhaustive.12
d) Statutory statement: It has four parts: i) Description of applicants; ii) Description of respondents; iii)
Relief sought (same reliefs in Chamber Summons); d) Grounds upon which the application is founded.
e) Notice of motion: Applicants are the Republic v. XYZ (ex parte the petitioner). It contains the reliefs sought
(same reliefs in Chamber Summons)
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
(CONSTITUTIONAL & HUMAN RIGHTS DIVISION)
MISCELLANEOUS APPLICATION NO …… OF 2015
BETWEEN
MR. WATSON KINGORI AND MS. BRENDA YUSUF .......... PETITIONERS
VERSES
DIRECTOR OF PUBLIC PROSECUTIONS …….. 1ST RESPONDENT
CHIEF MAGISTRATE, KIBERA COURT …….. 2ND RESPONDENT
INSPECTOR GENERAL …….. 3RD RESPONDENT
(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act,
Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)
CERTIFICATE OF URGENCY
I, MR. RES IPSA LOQUITOR, an Advocate of the High Court of Kenya practising as such in the Firm of RES
IPSA & COMPANY ADVOCATES who have the conduct of this matter on behalf of the Petitioner do hereby
certify that the application filed herewith is urgent and should be heard as soon as practicably possible for the
following reasons:
1. THAT the Petitioners have been wrongfully and unlawfully arrested and charged for creating disturbance
in Karen View Estate on 23rd May 2015 contrary to Section 95 of the Penal Code, Cap 63.
2. THAT the Petitioners have been wrongfully and unlawfully arrested and charged for allowing their son to
engage in a fight with Bonfesc which resulted in a breach of peace.
3. THAT the Respondent does not have credible evidence to prosecute the Petitioners.
4. THAT the alleged offence against the Petitioners actually never took place.
5. THAT the petitioners may be charged and convicted in a Court in Kibera before the Chief Magistrate of the
offence that they did not commit.
6. THAT the arrest and charging of the Petitioners is ill motivated.
In the meantime the Petitioners beseech the Honourable Court to restrain the Respondent from further instructing the
State Counsel to proceed with prosecuting the matter before the Court in Kibera. The grant of the said orders is
absolutely essential for the preservation of the rule of law and the democratic constitutional order in Kenya.
DATED at NAIROBI this 26th day of May 2015.13
12
Certificate of Urgency, Chamber summons and Verifying affidavit are granted upon issuance of the leave of the Court.
Dr. Ratemo Tom
4
(Signature is very important)
RES IPSA & COMPANY ADVOCATE
ADVOCATES FOR THE PETITIONERS

DRAWN AND FILED BY
QUEENSWAY HOUSE, 5TH FLOOR,
KAUNDA STREET,
P.O. BOX 29871-00202,
NAIROBI.
TO BE SERVED UPON:
A) DIRECTOR OF PUBLIC PROSECUTIONS
KAREN VIEW ESTATE, KAJIADO COUNTY, KAJIADO.
B) CHIEF MAGISTRATE, KIBERA COURT
KIBERA LAW COURTS, NAIROBI.
C) INSPECTOR GENERAL
POLICE HEADQUARTERS, KENYATTA AVENUE ROAD, NAIROBI.
13
The Date and Signature must be in all documents.
Dr. Ratemo Tom
5
REPUBLIC OF KENYA
MILIMANI LAW COURTS
BETWEEN
VERSES
CHAMBER SUMMONS
LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers on the ……. day of …….. 2015 at
9.00 O'clock in the forenoon or soon thereafter as counsel for the Petitioners may be heard for ORDERS:
1. THAT this application be certified as urgent.
2. THAT leave be granted to the Petitioners to apply for an order of CERTIORARI to remove into this
Honourable Court and quash the decision of the 1ST RESPONDENT dated 24/05/2015 to have the
Petitioners wrongfully and unlawfully arrested and charged.
3. THAT leave be granted to the Petitioners to apply for an order of CERTIORARI against the 2ND
RESPONDENT to quash the proceedings pending before the Court including the charge sheet.
4. Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the 2ND
RESPONDENT from continuing from the proceedings.
5. Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the 3RD
RESPONDENT from arresting the Petitioners.
6. The leave so granted do operate as a stay of continuation of proceedings.
7. The costs of this application be provided for.
WHICH APPLICATION is based upon the grounds set out in the Statutory Statement filed together with the
Verifying Affidavit of MR. WATSON KINGORI AND MS. BRENDA YUSUF and upon such other and further
grounds as may be adduced at the hearing hereof.
Dated at Nairobi this ……… day of ……… 2015.


DRAWN AND FILED BY
KAUNDA STREET,
P.O. BOX 29871-00202,
NAIROBI.
TO BE SERVED UPON:
POLICE HEADQUARTERS, KENYATTA AVENUE ROAD, NAIROBI
Dr. Ratemo Tom
6
REPUBLIC OF KENYA
MILIMANI LAW COURTS
BETWEEN
VERSES
VERIFYING AFFIDAVIT
I, MR. WATSON KINGORI, of Karen View Estate, P.O. Box 1672, Kajiado, Kajiado County, within the Republic
of Kenya, do hereby make oath and state as follows:
1. THAT I am the Petitioner herein with the knowledge of the facts attending to this matter hence, competent
to swear this affidavit.
2. THAT the application relates to the enjoyment of fundamental rights and freedoms secured and guaranteed
by the Constitution of Kenya, 2010.
3. THAT the facts stated establish a sufficient case with a high possibility of success in respect to the
Petitioners’ claims, and that further there is an overarching requirement of justice that the orders sought be
granted.
4. THAT Madam Winnie Mutali, the Director of Public Prosecutions is my neighbour at Karen View Estate,
Kajiado County.
5. THAT Mr. Bonfesc Mutegi Mutali is a son to Madam Winnie Mutali.
6. THAT Mr. Salim O’kubasu is my biological son.
7. THAT on 23rd May 2012 at Karen View Estate, Mr. Bonfesc Mutegi fought with my son Salim O’kubasu.
8. THAT the fight was triggered by a quarrel between the two (Salim O’kubasu and Bonfesc Mutegi Mutali)
at a local bar called ‘The Galaxy’ over the English Premier League results.
9. THAT Bonfesc Mutegi’s was the first to trigger the fight by aiming a bottle of a drink called Yokozuna at
O’kubasu’s head missing it by a whisker and by lurching at O’kubasu and wrestling him to the ground.
10. THAT Mr. O’kubasu acted in self-defence.
11. THAT the Director of Public Prosecutions was humiliated by the beating at the hands of O’kubasu, in self-
defence and promised to teach O’kubasu an unforgettable lesson on what she called ‘how to respect
children of those who matter in the society.’
12. THAT on 24th of May 2015, my wife, Ms. Brenda Yusuf and I were wrongfully arrested by the Rongai
police on the Director of Public Prosecutions’ instructions allegedly for failing to teach our son ‘good
manners.’
13. THAT on 26th May 2015, we were charged in Court in Kibera before the Chief Magistrate for creating
disturbance in Karen View Estate on 23rd May 2015 contrary to Section 95 of the Penal Code, Cap 63.
14. THAT immediately after our arrest, we contacted our counsel Mr. Res Ipsa Loquitor and instructed him to
proceed with the matter.
15. THAT Mr. Res Ipsa Loquitor thereafter applied and obtained copies of all documents of the prosecution’s
file.
16. THAT by sheer coincidence and mistake, the Director of Public Prosecutions’ note of instructions to the
State Counsel was availed to the defence.
17. THAT in the said instruction note, the Director of Public Prosecutions had clearly instructed the
prosecuting State Counsel to punish us for the alleged bad manners of our son. (See, annexure 1)
18. THAT in Paragraph Two of the said note, the Director of Public Prosecutions had informed the prosecuting
State Counsel that she had no evidence at all as the offence actually never took place.
Dr. Ratemo Tom

7
19. THAT I have read, had it explained to me and understood the contents of, and do hereby confirm the
factual contents thereof as correct.
20. THAT I swear this Affidavit in good faith and in support of the Notice of Motion application herein
21. THAT the facts deponed herein are true to the best of my knowledge.
SWORN AT NAIROBI )
By the said Mr. Watson Kingori ) …………………………………..
This …….. day of ……… 2015 ) Deponent
)
BEFORE ME )
)
COMMISSIONER FOR OATHS )

DRAWN AND FILED BY
KAUNDA STREET,
P.O. BOX 29871-00202,
NAIROBI.

TO BE SERVED UPON:
POLICE HEADQUARTERS, KENYATTA AVENUE ROAD, NAIROBI.
N.B:
In Civil, the Verifying Affidavit is short because of the Witness Statements.
Dr. Ratemo Tom

8
REPUBLIC OF KENYA
MILIMANI LAW COURTS
BETWEEN
VERSES
STATUTORY STATEMENT
NAMES AND DESRIPTION OF THE PARTIES

1. The Petitioners are:
a) MR. WATSON KINGORI, a male adult of sound mind residing and working for gain in Kajiado County,
Kenya. The Petitioner's address of service for purposes of this matter shall be C/o Res Ipsa & Company
Advocate, Queensway House, 5th Floor, Kaunda Street, P.O. BOX 29871-00202, Nairobi.
b) MS. BRENDA YUSUF, a female adult of sound mind residing and working for gain in Kajiado County,
Kenya. The Petitioner's address of service for purposes of this matter shall be C/o Res Ipsa & Company
Advocate, Queensway House, 5th Floor, Kaunda Street, P.O. BOX 29871-00202, Nairobi.
2. The Respondent is:
a) MS. WINNIE MUTALI, a female adult of sound mind residing and working for gain in Nairobi, Kenya.
The Respondent's address of service for purposes of this matter shall be Karen View Estate, Kajiado
County, Kajiado.
RELIEFS SOUGHT
GROUNDS UPON WHICH RELIEFS ARE SOUGHT

1. THAT the Petitioners have been wrongfully and unlawfully arrested and charged for creating disturbance in
Karen View Estate on 23rd May 2015 contrary to Section 95 of the Penal Code, Cap 63.
2. THAT the Petitioners have been wrongfully and unlawfully arrested and charged for allowing their son to
engage in a fight with Bonfesc which resulted in a breach of peace.
3. THAT the Respondent does not have credible evidence to prosecute the Petitioners.
4. THAT the alleged offence against the Petitioners actually never took place.
5. THAT the petitioners may be charged and convicted in a Court in Kibera before the Chief Magistrate of the
offence that they did not commit.
6. THAT the arrest and charging of the Petitioners is ill motivated.
Dr. Ratemo Tom

9


DRAWN AND FILED BY
KAUNDA STREET,
P.O. BOX 29871-00202,
NAIROBI.
TO BE SERVED UPON:
Dr. Ratemo Tom

10
REPUBLIC OF KENYA
MILIMANI LAW COURTS
BETWEEN
REPUBLIC .......... PETITIONERS
VERSES
(EX-PARTE MR. WATSON KINGORI AND MS. BRENDA YUSUF)
NOTICE OF MOTION
TAKE NOTICE that pursuant to leave granted by this Honourable Court on ………. day of ………. 2015, this
Honourable Court will be moved on the …….. day of …….. 2015 at 9.00 O'clock in the forenoon or as soon
thereafter by the Applicant for ORDERS:
WHICH APPLICATION is based upon the grounds set out in the Statutory Statement and the Verifying
Affidavit of MR. WATSON KINGORI sworn on ……… accompanying the application for leave dated ………
and on such other grounds as may be adduced at the hearing hereof.


DRAWN AND FILED BY
KAUNDA STREET,
P.O. BOX 29871-00202,
NAIROBI.
Dr. Ratemo Tom

11
TO BE SERVED UPON:
(If any party served does not appear at the time and place above mentioned, such orders will be made and
proceedings taken as the Court may think just and expedient)
Dr. Ratemo Tom

12

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JUDICIAL REVIEW

DATED at NAIROBI this 26th day of May 2015.13

(Signature is very important)

(Signature is very important)

(Signature is very important)

Dr. Ratemo Tom

(Signature is very important)

(Signature is very important)

Dr. Ratemo Tom

NAMES AND DESRIPTION OF THE PARTIES

GROUNDS UPON WHICH RELIEFS ARE SOUGHT

Dr. Ratemo Tom

(Signature is very important)

(Signature is very important)

Dr. Ratemo Tom

(Signature is very important)

(Signature is very important)

Dr. Ratemo Tom

Dr. Ratemo Tom

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