1(i) Citing relevant authorities, explain the difference between merit review and process

review as understood in law of judicial review in Kenya.

Judicial review as defined in the Black’s Law Dictionary, is a court’s review of a lower court’s
or an administrative body’s factual or legal findings. 1 As it was stated in the case of Republic v
Commissioner of Lands ex parte Hotel Kunste, judicial review is a sui generis proceeding that
is neither civil nor criminal.2 Judicial review is described as being a special and “supervisory”
jurisdiction of the court.3

The process of, and basis for, judicial review is therefore different to both ordinary civil
litigation (which is adversarial in nature) and to an appeal. Judicial review is said to be in place
as a constitutional guarantee to protect the interest and ensure that public bodies no not exceed or
abuse their powers.4 This position was rightly espoused in Republic v. The Judicial Service
Commission & Another ex-parte Joyce Manyasi5 where Justice W. K. Korir, 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.

The Judicial Review Division of the High Court, which is essentially an ‘Administrative Court’
specializes in judicial review in acting as ‘the “guardian of the public interest”, dealing with
inquiries into decisions, rather than actions against decisions’. 6 The judicial review powers of the
High Court are set out in Article 165(6) of the Constitution of Kenya, 2010, which states that:

“The High Court has supervisory jurisdiction over the subordinate courts and over
any person, body or authority exercising a judicial or quasi-judicial function, but not
over a superior court.”

Based on its role of protecting the public interest, judicial review proceedings are brought in the
name of the State as having a proper interest in obtaining whichever judicial review remedy the
court deems fit to give, i.e., Republic v XYX ex parte XXX. The name after ex-parte is usually
the name of the main complainant.

1
Black’s Law Dictionary, 9th edition, pg. 924
2
Republic v Commissioner of Lands Ex parte Hotel Kunste [1997] eKLR
3
C Clayson, Judicial Review: Court’s Role on Review (2020)
4
ibid
5
(2012) eKLR
6
C Clayson, Judicial Review: Court’s Role on Review (2020)
This position was reiterated by Justice Odunga in Christopher Musau v Attorney General7
where he held that applications for prerogative orders must be made in the name of the Republic.
Accordingly, he stated that the orders of certiorari, mandamus or prohibition are issued in the
name of the Republic and applications therefore are made in the name of the Republic at the
instance of the person affected by the action or omission in issue.

Judicial review is provided for in the Constitution as a remedy to an aggrieved person of a

decision.8 The Constitution provides for the enforcement of rights by instituting a suit claiming
that a right or a fundamental freedom has been violated or infringed, denied or is threatened. 9 It
further states that in any proceedings brought under Article 22 the court may grant orders
including order of judicial review.10 Additionally, Article 47 of the Constitution provides for the
right to fair administrative action that is expeditious, effective, lawful, reasonable and
procedurally fair. The remedies availed under judicial review are orders of certiorari, prohibition
and mandamus.11

From the provisions above, it is clear that judicial review is the process through which an
aggrieved person can find redress in law. It is through the codification of the judicial review in
the Constitution that the issue of process review and merit review arise. When a person is
seeking redress in judicial review, courts have to determine if a party is seeking for a process
review or merit review. Merit and process review were discussed in both Edwin Dande & 3
others v Inspector General, National Police Service & 5 others (Dande case) and Praxedes
Saisi & 7 others v Director of Public prosecution & 2 others (Saisi case) cases.

The court in the Saisi case, was of the opinion that in order to examine the provisions of Section
7 of the Fair Administrative Action Act (FAAA), some merit analysis has to be determined. 12 It
proceeded to state that in order to determine if the decision was reasonable and fair, it had to
look at the merit analysis of the uncontroverted evidence. 13 While borrowing from the words of

7
Miscellaneous Civil Application No 90 of 2007
8
Article 23(3), Constitution of Kenya 2010
9
Article 22, Ibid
10
Supra, n 3
11
Order 53, Rule 1, Civil Procedure Rules
12
Praxedes Saisi & 7 others v Director of Public prosecution & 2 others (petition 6 (E007), 4 (E005) & 8 (E010) of
2022 (consolidated) [2023] KESC 40 (KLR
13
Ibid
the Court of Appeal in Judicial Service Commission & SC another v. Lucy Muthoni Njora,
the court stated that:14

“there is nothing doctrinally or legally wrong about a judge adopting some measure of review,
examination, or analysis of the merits in a judicial review case in order to arrive at the justice of
the matter. Rather a failure to do so, out of a misconception that judicial review is limited to a
dry or formalistic examination of the process only leads to intolerable superficiality. This would
certainly be against Article 259 of the Constitution which requires us to interpret it in a manner
that inter alia advances the rule of law, permits the development of the law and contributes to
good governance.”

The court however did not give a distinction between the merit and process review.

In the Dande case the court outlined what a merit review and process review entails. The court
stated that:15

“when a party approaches the court under the provision of the Constitution, then the court ought
to carry out a merit review. If a party approaches the court under Order 53 of the Civil
Procedure Rules and does not claim any violation of the Constitution, then the court can only
limit itself to the process and the manner in which the process was reached.”

Furthermore, it stated that depending on how the pleadings procedure have been drafted at the
inception of the proceeding, the court will determine whether to limit itself to process review or
merit review.16

Based on what the court stated in the Dande case, a merit review goes beyond the procedural
aspects and allows for a substantive evaluation of the decisions correctness or suitability. A party
has to claim Constitutional violations for the court to look into the merits of the case. This is by
raising constitutional questions in the pleadings. The court will also look at the uncontroverted
evidence submitted to it in order to make a determination of whether the decision was reasonable
and fair. From the decisions of the Dande and Saisi cases, merit review is a hybrid of the
Constitution and Order 53 of the Civil Procedure Rules. This is because in analyzing the

14
Ibid
15
Edwin Dande & 3 others v Inspector General, National Police Service & 5 others
16
Ibid
decision, it looks at both the constitutional provisions in the pleadings and the process in which
that decision was arrived at.

In a process review (the traditional approach) a party is restricted to demonstrate that the
decision complained of was tainted with illegality, irrationality and impropriety. 17 Under a
process review, a party moves the court under Order 53 of the Civil Procedure Rules and does
not claim any violations of the constitution. 18 The pleadings under process review are based on
the process or the manner in which the decision was made. 19 It also seek to look at the legal
limits under which the decision was made by the authority. 20 The grounds under process review
are that: the decision maker acted unreasonably; a mandatory and material procedure or
condition prescribed by an empowering provision was not complied with; the action or decision
was procedurally unfair; the action or decision was materially influenced by an error of law
among others as stated under the Act.21

With the shift from the traditional judicial review process to include merit review, the next
question to ask is whether courts have the power to substitute the decision that was made
previously with its own. Under Section 11 of the Fair Administration Act, courts have the power
to remit the matter back to the decision making body. As it was stated in the case of Suchan
Investment Limited v Ministry Natural Heritage & Culture & 3 Others by the Court of
Appeal, there is no power for the reviewing court to substitute the decision of the administrator
with its own.22 This means that courts will conduct the merit review and make determination of
that review based on the issues that were raised by a party with regards to that decision.
Thereafter, remit it back to the administrative body that made it. This is applicable to both merit
and process review

Additionally, in the case of John Florence Maritime Services Limited v Cabinet Secretary,
Transport and infrastructure, the court stated that some measure of merit analysis is necessary
to determine fairness and reasonableness without transforming the review into a full-fledged

17
Keroche Industries Limited v Kenya Revenue Authority & 5 others [2007] eKLR
18
Supra, n. 11
19
Dr. David Bennett AO QC, Balancing Judicial Review and Merit Review
20
Ibid
21
Supra n. 5
22
Suchan Investment ltd v Ministry of Natural Heritage & Culture & 3 Others [2016] eKLR
appeal.23 Merit review therefore despite looking into the substance of the case, does not amount
to an appeal.

In conclusion, the difference between a process review and merit review is that: process review
focuses on the legality, rationality and propriety of the decision making process while merit
review looks at the substantive evaluation of the decisions correctness or suitability.

23
John Florence Maritime Services Limited v Cabinet Secretary, Transport and infrastructure