UNIVERSITY OF NAIROBI

SCHOOL OF LAW

COURSE CODE: GPR 213

ADMINISTRATIVE LAW

Dr Seth Wekesa

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Part 1: THE HISTORICAL DEVELOPMENT OF JUDICIAL
REVIEW IN KENYAN LEGAL SYSTEM

INTRODUCTION
Judicial review is the power of the court, in appropriate proceedings before it, to
declare a governmental measures either contrary to, or in accordance with, the
constitution and other governing laws, with the effect of rendering the measures
invalid and void, or vindicating its validity. 1 Judicial review in Kenya lies its origins
in the common law of England. , while the Law Reforms Act provided a basis for
judicial review power, the Civil Procedure Act regulated its exercise. 2 The Law
Reforms Act vested upon the High Court jurisdiction to issue the orders of
mandamus, prohibition and certiorari, but could not issue any other order.

This historical chronology in development of judicial review in Kenya can be divided

into two sections that is: before the 2010 constitution and after the 2010 constitution.

HISTORY OF JUDICIAL REVIEW BEFORE THE

CONSTITUTION OF KENYA 2010

YEARS 1956-1992
The High Court derives its jurisdiction from section 8 and 9 of the Law Reforms Act.3

This can traced back to 1956 when the law reform ordinance No. 48 of 1956 was
enacted. It vest in the High Court power to issue prerogative orders in all cases where
the High Court of England could do so pursuant to section 7 of the Administration of
Justice Act, 1938.

Section 8(2) of the Law Reforms Ordinance, 1956, imported to Kenya the English
common law and vested the jurisdiction on our High court, to issue the orders of
1
Migai Akech, Administrative Law (1st edn, Strathmore University Press), 411.

2
Migai Akech, Administrative Law (1st edn, Strathmore University Press), 427.

3
Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa 2012), 55.
mandamus, prohibition or certiorari, as opposed to such writs- which were conceived
as standing in special relationship to the crown 4 hence were regarded to as prerogative
writs5 issued by the High Court of England before enactment of Administration of
justice Act 1938, when they were applicable.

In 1960 however, the provision to section 8(2) of the Law Reforms Ordinance, 1956,
which barred the High Court from issuing such orders, when alternative remedies
were available under the Civil Procedure Ordinance of the Criminal Procedure Code
or where the judicial review ‘order applied for would be rendered unnecessary was
repealed by the Law Reform [Miscellaneous Provisions (Amendment)] Ordinance
No. 16 of 1960 .This amendment had the effect of allowing aggrieved party’s to seek
the orders of mandamus ,prohibition and certiorari. Furthermore it bestowed upon the
courts discretion in deciding whether to issue or decline to issue the orders applied for
by the parties.

In 1966, the Statute Law Act No.21 of 1966 was enacted which enabled the post-
independence parliament to substitute the word ‘Crown’ with ‘Government’ in Kenya
Statutes and ‘Government’ with ‘Republic’ in judicial review proceedings. This was
to ensure that Kenyan Laws accorded with independence of Kenya from crown of
England. This however did not dismiss the application of English administrative law
to Kenya as section 8 of the Law Reforms Act as the benchmark in reference to the
High Court exercising judicial review jurisdiction. 6

THE 1992 AND 1996 PROCEDURAL CHANGES

In the period between 1956 until 9th June 1992 the procedure governing judicial
review remained relatively stable. However influenced by the developments in
English law governing procedure for judicial review, the Rules committee
promulgated Legal Notice No.164 of 1992

4
PLO Lumumba ,Judicial Review in Kenya (2nd edn, law Africa 2012),6

5
SA de Smith ,Judicial Review of Administrative Action (3edn)London ,Stevens at 507

6
Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa 2012), 57
The Legal Notice No.164 of 1992 brought with it a few changes .The First one
concerned changing the title of Order 53, which until then read; ‘ORDERS OF
MANDAMUS, PROHIBITION AND CERTIORARI’ which was deleted and
substituted by ‘APPLICATIONS FOR JUDICIAL REVIEW’. This for the High
Court meant that applicants for judicial review could seek orders and not specify them
and the court could issue them based on the facts of each individual case.

In National Democratic Union v Attorney General MCA No. 145 of 1992, the
applicant set out its grievances against the office of the Attorney General setting out
setting out material facts without specifying judicial review order it desired to be
granted by the court. The court in dealing with the matter, explained and held that
under the new rule (Legal Notice 164 of 1992), it was sufficient to set out the grounds
which would or might entitle and applicant to one or more judicial review order and
that it was no longer necessary to specify the order(s) sought.7

In England, a similar amendment, under the 1997 amendment, was to enable the High
Court not only to issue the order of mandamus, prohibition and certiorari, but also to
grant the orders of injunction, declaration and damages against unlawful
administrative actions. In Kenya to date, these can constitutional applications. Before
in England, an applicant could not be granted such order in judicial review. As
explained by Diplock J in IRC v National Federation of Self-employed and Small
Business Ltd{1981}2 All ER 93 at 102 the main purpose of the change was to sweep
away procedural differences like that of locus standi and substitute them with single
simplified procedure and to give the court wide discretion in cases.

Secondly the Legal Notice No.164 of 1992 introduced through Rule 2(b)(ii)(1) of
Order 53 of the Civil Procedure Rules which provides that ‘an application for judicial
review shall be made promptly and in any event within six months from the date
when the grounds for application arose unless the High Court considers that there is a

7
Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa 2012), 58.
good reason for extending the period within which the application was made.’ 8 This
gave the High Court power to extend the period of applying for certiorari beyond the
six months where deemed necessary. This was similar to England where the court had
jurisdiction to extend the period of three months, with good reasons. However, the
rule was short lived as it was declared null and void by the parent law. This was in the
case of Raila Odinga and Others v Nairobi City Council Civil Application No.899 of
1993 where the court said that Order 53, rule 2(b) (ii) could not defeat or override the
clear provisions of section 9(2) of the Law Reforms Act. The court declared the words
‘unless the High Court considers that there is good reason for extending the period
within which the application shall be made’ ultra vires to section 9(2) of the Act.

Thirdly the notice deleted rule 1 of Order 53 which had imposed a mandatory
requirement upon the applicant for judicial review to give notice for application for
leave not later than the preceding date to the registrar of the High Court.9

Consequently other changes brought about were , the old rule 1(4) which provided
which provided that the grant for leave to apply for an order of prohibition or
certiorari, if the judge so directs, to operate as a stay of the proceedings until
determination of the application or until the judge so ordered otherwise, was
expunged. This meant that requirement of leave before applying for judicial review
hand been eliminated and that the court lost the power to order leave to operate as a
stay. The High Court confirmed this In the Matter of Mwangaza Trust Misc.
Application No. 98 of 1995 where it was reinforced by the ruling of Justice Aluoch in
1172 of 1994, Re Court Brokers Licensing Board in which she held that the High
Court had lost its power to grant stay under Order 53.

The other change brought by the Rules Committee was put in effect through the new
Order 53, rule 3(1) which vested jurisdiction to a single judge to hear and determine
8
Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa 2012), 61.

9
Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa 2012), 62.
applications. Before, applications for leave were heard by a single judge in chambers
while substantive motions were heard by two judges in motion.

The most far-reaching change to judicial review procedure brought by Legal Notice
No. 164 of 1992 was effected through the new rule 2(b)(1) which replaced the then
rules 1 and 2 of civil procedure rules which had made leave a mandatory requirement
in application for judicial review. 10 This amendment expunged requirement for leave
in judicial review order and was a major innovation by the Rules Committee since in
England, the requirement had been retained. The removal of requirement for leave
was to shorten procedures and reduce the costs of seeking judicial review remedies.
However, the Rules Committee neglected to delete rules 3 ad 4(1) of the Order53 of
the Civil Procedure Rules which required that copies of a statement accompanying
application for leave should be served with the notice of motion on the affected
parties.

From the fore going we can conclude that the Rules Committee failed to develop with
sound rationale the 1992 amendments and come up with coherent, consistent and non-
contradictory provisions in the amendments. The amendments effected through Legal
notice No. 164 of 1992 governed the procedure for judicial review until 1993 when
they were declared ultra vires, null and void for inconsistency with the provisions of
the Law Reforms Act in Kenneth Stanley Njindo Matiba v Attorney General Misc.
Application No. 790 of 1993. The applicant sought an order of certiorari to allow him
bring a foreign lawyer to represent him in an election petition supported by the 1992
amendment. He failed to first seek leave of court to do so. The court stated in relation
to this that rules made pursuant to a statute are delegated legislation and that the
legislature must always be the prime guide to the delegated legislation. The court also
determined the legality of the Rules Committee to remove requirement for leave by
relying on the dictum of Campbell CJ in Liverpool Borough Bank v Turner (1861)30
LJ 397 where he stated that ‘it is the duty of the courts of justice to try to get at the
real intention of the legislature by carefully attending to the whole scope of the
statute.’ This was also emphasized In the Matter of Mwangaza Trust. The
amendments to the judicial review procedure were therefore found to inconsistent
with the Law Reforms Act and were declared ultra vires. In 1996, the Rules

10
Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa 2012), 60.
Committee retained the procedure of judicial review that had preceded through Legal
Notice No.5 of 1996.

THE 2003-2009 PRACTICE DIRECTIONS

In 2003, the Chief Justice issued practice directions establishing a division of the High
Court to deal with Judicial Review and Constitutional applications and reference and
nominated three judges of the High Court to permanently preside over public law
matters presented to the court’s division in Nairobi. 11 Through this, principles like
legitimate expectations, proportionality and fairness have been refined accorded
recognition. Before, information and materials were difficult to come up with as they
were scattered.

On 19th January 2007, the Chief Justice issued practice directions under Legal Notice
No. 300 of 2007 directing that ‘All Judicial Review proceedings under Order 53 of the
Civil Procedure Rules and Constitutional applications and references must be filed at
the Central Office Registry of the High Court in Nairobi except where leave of the
Chief Justice is obtained for filing in any District Registry.’ 12 The Law Society of
Kenya sued the Chief Justice and petitioned to the president to establish a tribunal for
his removal. By Legal Notice No. 1756 dated 19th February 2009, the Chief Justice
directed that special registries be created for judicial review and constitutional
applications in appropriate High Court registries and that judicial review and
constitutional applications and references be heard on priority basis without delay.

THE HISTORY OF JUDICIAL REVIEW AFTER THE

CONSTITUTION OF KENYA 2010.

THE CIVIL PROCEDURE RULES, 2010

On 10 September 2010, the Rules Committee promulgated the Civil Procedure Rules,
2010, which commenced operation on 17 December 2010. It expunged the then Order
53,rule 1(3) that required prior notice for application for leave to apply for judicial
review to be served upon the High Court Registrar.

11
Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa 2012), 66.

12
Ibid, 66.
The Rules Committee also promulgated a provision to Order, 53, rule 1(4) conferring
upon the High Court judge discretion ‘where circumstances so require’ to direct the
application for leave ‘be served for hearing inter partes before grant of leave’; and to
direct that ‘the question of leave and whether grant of leave should operate as stay
may be heard and determined separately within 7days.’ Before, the rules and
procedure at the stage level required that the application for leave and orders that lave
if granted should operate as a stay had to be heard ex parte at once, without being
separated.13

THE CONSTITUTION OF KENYA 2010

This constitution was promulgated on 27 August 2010 after decades of agitation by
the people. It became the supreme law of the land14.

The new constitution proclaims the sovereignty of the people and the Constitution’s
supremacy as a source of law in Kenya, sets out the national values and principle of
governance, establishes the principal organs of the government, creates constitutional
commissions and independent public offices, and entrenches the principles of
separation of power, devolution, democracy and rule of law. 15 It further stipulates
procedure and timeframe for reforms of principal government organs and institutions.
It has, in the judiciary, made it mandatory for all judges and magistrates who were in
office on the 0-day it came into operation to undergo vetting under an Act of
Parliament.

Most importantly, it promulgates the Bill of Rights and elaborates on provisions for
protection of individual rights. While Article 23(3) (f) makes orders of judicial review
part of relief courts may grant to enforce Bill of Rights, Article 47 entitles every
person to administrative action that is expeditious, efficient, lawful, reasonable and

13
Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa 2012), 68

14
Article 2(1) The Constitution of Kenya 2010

15
Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa 2012), 68.
procedurally fair16. Article 47(3) obligates Parliament to enact legislation to give
effect to the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair; and, requires for legislation to provide for the right
to judicial review and promote efficient administration. The realization of this came in
2015 when the Fair Administration Act, 2015 was enacted to give effect to Article 47.
Also relevant Article 50(1) ‘every person has the right to have any dispute that can be
resolved by application of law decided in a fair and public hearing before a court or if
appropriate, another independent and tribunal or body.’

Thus, currently, administrative law is an administrative law remedy and a

constitutional fundamental. The 2010 Constitution enshrines the right to fair
administrative action, the right to written reasons for adverse administrative actions
and the right to judicial review of administrative actions. This has been enshrined in
the Fair Administration Act, 2015.

PART 2: USING STATUTORY PROVISIONS AND DECIDED

CASES, DISTIGUISH BETWEEN JUDICIAL REVIEW
ANORDINARY REVIEW.

ORDINARY REVIEW
Judicial review is covered under Order 53 and ordinary review is provided for under
Order 44 of the Civil Procedure Rules.

Ordinary Review is a review of judgment or order of a court of law. Judicial review is

a review of an act or a decision of an administrative body.

Review means to simply look at it again. It is a review of the judgment or order of a

court of law. This must not be confused as an appeal simply because an appeal allows
an appellant to be able to make correction on a judgment made by a subordinate court.

16
Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa 2012), 68.
A review gives the original court an opportunity to correct errors to a certain limit and
ensures that the parties are not deprived of their rights in any given way. A review
ensures that a court will look at a judgment on specific grounds of a statute

The provision of a review is the exception of a general rule that if a judgment is made
its decision is final. Which means that no one has the control over a matter if the
judgment is pronounced .The power of the review is an exception for it allows the
same judge who pronounced judgment to look at it again and if any mistake was made
along the process to correct it.

One should take into account that a decision should not be reviewed twice

Judicial review is a review of an act or a decision of administrative body. It is

primarily concerned with the merits of a decision

Conditions for application of an ordinary review by an appellant

a. On the discovery of new and important matter or evidence which after the
exercise of due diligence was not within his knowledge or could not be
produced by him at the time the decree or order was made. I
b. On a count of some mistake or error apparent on the face of the record; for
example error of law, typographical errors, mathematical errors etc.
c. For any other sufficient reason.

Circumstances when a person can review an ordinary review in a different

court?
a. If Where the Chief Justice orders some other person i.e. some other judge or
magistrate to hear their application for review.
b. If the judge who made the judgment is transferred or doesn’t work at the
station any more.
c. If the judge who made the judgment has been absent for more than three
months it’s considered as a delay and it may be allowed.

Judicial review is concerned with not only the merit which is right or wrong but also
if it is lawful or unlawful this makes it different from another form of review.
Grounds for Judicial Review
These include where the administrator – did not have jurisdiction or exceeded their
jurisdiction or acted pursuant to delegated power in violation of a law prohibiting
such delegation.

a. Judicial review is also permissible where there is bias or reasonable suspicion

of bias as well as in situations where the affected person was denied a
reasonable opportunity to state their case.
b. Situations of non-compliance with mandatory and material procedures and
conditions precedent, procedural unfairness and errors of law.
c. There is abuse of discretion and unreasonable delay or failure to act in
discharge of a duty imposed under any written law.

Some of the reliefs outlined in section 11 of the Act include: a declaration, injunction,
a direction to give reasons, prohibition, setting aside and remission for
reconsideration, mandamus, temporary interdicts and other temporary relief, and an
award of costs.

When applying for a judicial review it requires an applicant should first exhaust all
other mechanism for review or appeal before making an application to the court.

The law requires that judicial review applications must be determined within ninety
days of filing the application.

Differences between ordinary review and judicial review

a. Judicial review an aggrieved must first of all apply for leave of court while
ordinary review there is no application for leave in courts.17
b. Judicial review there is a limitation of time while ordinary review no limit of
time but application should be done with no unnecessary delay.
c. With regard to the ground- the grounds for judicial review are not the same as
those for ordinary review.

Cases law on Ordinary review

Abdulahii Mohamud v Mohammed Kaahiye 18

17
Migai Akech, Administrative Law (1st edn, Strathmore University Press)

18
Abdulahii Mohammed v Mohammed Kaahiye 2015 eklr
The plaintiff wants to seek remedies on the judgment which awarded him erronesly
figures of 90600 whereas he sought 200688.43shilings or future medical expenses.
The judge ruled that damages should be proved and not pleaded as was the case with
the plaintiff. He also stated that there was no new evidence on the matter and his only
issue was how the judge came up with that figure.

2. STATUTORY APPEAL
Judicial review is the procedure by which a court reviews administrative action or
decision by a public body. Appeal on the other hand is the transfer or taking of a case
by a higher court from a lower court in the hope of reversing or modifying, here a
decision is determined whether it was right or wrong. In appeal, there is rehearing of
the case. An example is for example if an individual defamed another and was the
decision was in favour of the claimant the defendant can appeal either the judgement
or the amount of awards given to the claimant and if the court is persuaded by the
merits of the case based on the evidence and the applicable laws, then the appeal is
allowed and the court can substitute its decision with that of the former(the inferior
court).As per section 79(b) of the Civil Procedure Rules, the court has power to
reject an appeal, there has to be sufficient grounds for interfering with decree while
the court is in the process of perusal of record of appeal for an appeal to be successful.

Appeal is concerned with the merits of the case that is whether the decision of the
case was right or wrong based on the evidence rendered and the applicable laws while
judicial review is concerned with whether the decision or the decision making process
was lawful or unlawful and isn’t concerned with the merits of the case. In Chief
Constables of North Wales v Evans19, the court in an effort to distinguish judicial
review and appeal stated the purpose of judicial review is to ensure fair treatment of
the individual by administrative authorities which the individual is subject. In Judicial
Review its purpose is not to substitute the decision but rather if it is found that the
decision or decision making process was unlawful then the decision is invalidated as a
whole and made afresh a second time in accordance with the law. Here the major
distinction is that in Appeal the decision made is overturned or modified while in

19
Chief Constables of North Wales v Evans[1982] 1 WLR 1155
judicial review the decision is invalidated ; made afresh a second time in accordance
with the law.

In judicial review if the law wasn’t followed in the first place the court can order that
administrative body to reconsider the matter as is not the case in appeal whereby the
appellate court will substitute its own decision in the place of the inferior court’s
decision. In Mirugi Kariuki v Attorney General 20, the appellant was charged with
treason, he wrote a petition to the attorney general seeking that he grant leave to an
English barrister .In the exercise of his absolute discretion to consider such requests,
the Attorney General denied the petition in the form of a letter saying that his case
was pretty straight forward and wouldn’t require assistance of a foreign advocate. The
appellant in his applying for certiorari to quash the decision of the Attorney General,
the court found the grounds of the decision of the A.G suspicious and it presented the
letter to the high court which quashed it and directed the Attorney General to
reconsider Mr Kiruri’s request in a manner more respectful and in accordance to the
norms of sound administration.

Appeal is granted by statute that is unless a statute expressly allows appeal an

aggrieved party cannot lodge an appeal against a decision, the procedures and the due
details and provisions of appeals are provided four in order 43 of the Civil Procedure
Rules. In cases where appeals are allowed against administrative actions and
decisions, the relevant law has to expressly state that appeal is allowed. In Munene v
Republic21 ,the court of appeal stated , “it is well established that there is no right of
appeal apart from statute ,either it is expressly granted by statute or it is not. There is
no right of appeal by mere implication or by inference.” In appeal where the appellant
can prove sufficiently that there was error in law or fact, then the appellate body
cannot deny to provide relief sought in cases of extraneous considerations on the
issues raised in the case. In contrast Judicial review issues orders of mandamus,
prohibition and certiorari which are discretionary, application for judicial review is
denied or waivered where it is in excess of jurisdiction, or breach of the rules of
20
Mirugi Kariuki v Attorney General [1992] eKLR

21
Munene v Republic[1978](No.2)eKLR 105
natural justice where applicant has delayed unreasonably before instituting the
proceedings or where applicant has approached the court with unclean hands among
other reasons. Judicial Review on the other hand, the court exercises inherent powers
in exercising judicial review over public administrations or authorities, there need not
be statutory provisions expressly authorising the high court to exercise judicial review
of administrative actions or decisions.

In appeal every decree may be appealed unless barred by some law. Judgement in
default is appealable.

In Cooper v Wilson and Others22, here a police officer, dismissed a watch committee
invalidly, it was held he did not exercise his statutory right of appeal to the home
secretary, thus he could obtain a declaration from court.

Bibliography
 Migai Akech, Administrative Law (1st edn, Strathmore University Press)
 Peter Kaluma, Judicial Review: Law Procedure and Practice (2nd edn, Law Africa
2012)
 SA de Smith ,Judicial Review of Administrative Action (3edn)London
 PLO Lumumba ,Judicial Review in Kenya (2nd edn, law Africa 2012)
 The Fair Administrative Act 2015

22
Cooper v Wilson and Others [1937] 2 KB 309