Administrative Law

• CLS 124 – Lecturer, Mumbi Mathangani

 Definitions,
character, &
Why judicial review
What falls under Content covered
Who may request
context of judicial Judicial Review for judicial review
review

How may one

Judicial review
make requests for Case studies
remedies
judicial review
 Definitions/concept of judicial review
Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a
decision or action made by a public body.

In other words, judicial reviews are a challenge to the way in which a decision has been made,
rather than the rights and wrongs of the conclusion reached.

It is not really concerned with the conclusions of that process and whether those were ‘right’, as
long as the right procedures have been followed. The court will not substitute what it thinks is
the ‘correct’ decision. (Cts. do not second or play devil’s advocate with admin. decisions)

This may mean that the public body will be able to make the same decision again, so long as it
does so in a lawful way.
 • Judicial review is the idea
that the actions of the
executive and legislative
branches of government
Definition/Concept are subject to review and
of Judicial review possible invalidation by
the judiciary.
Definitions conti . . .
USA Supreme Ct. • Supremacy of the Judiciary in determining what the law is
 Definitions Cont . . .

Judicial review, power of the courts of a country to examine

the actions of the legislative, executive, and administrative
arms of the government and to determine whether such
actions are consistent with the constitution. Actions judged
inconsistent are declared unconstitutional and, therefore,
null and void. The institution of judicial review in this sense
depends upon the existence of a written constitution.
Historical Legacy of Judicial
Review in Kenya
• Inherited from the
Colonial experience
• Africans were subjects
not citizens
• Immediate post-colonial
experience continued the
legacy
• Current constitution very
strong on checking
administrative action
• FAAA very broad and
“citizen friendly.”
 Why - Judicial Review
Major overarching check of Protect citizens rights and
executive (administrative) the dignity of individuals Deepens democracy
and legislative action and communities

“Cures a culture of
arbitrariness inherent in our
Promotes and protects adminstrative processes.”
natural justice (Cherono Gladys Vs.
University of Nairobi (2020)
eKLR, pg. 4)
Upholds the principle of
supremacy of the
constitution & the rule of
law
Judicial Review: Supreme Ct. Annuals Presidential election results, 2017
 • All in all, the September 1,
2017, ruling was good news
for Kenyan democracy.
“The greatness of a
nation relies on its
fidelity to the
Constitution and
adherence to the rule of
law,” said Chief Justice
Maraga, giving Kenya’s
democracy marathon a
second wind, a massive
victory that hopefully
translates into a better
process and stronger
democracy in Kenya and
Judicial review of beyond.

administrative action: - Al Jazeera, 2 Sept. 2017

Deepening democracy
 Article 7 of the FAAA clarifies who/which
entity may apply for judicial review:
“(1) Any person who is aggrieved by an
administrative action or decision may
Who may apply for review of the administrative
request for action or decision to–
judicial review: • (a) a court in accordance with
FAAA, No. 4 section 8; or (b) a tribunal in exercise
of its jurisdiction conferred in that
of 2015 regard under any written law.
NB: The FAAA ends the monopolistic
reign of the High Court as the only body
capable of granting judicial review.
 What may be reviewed (Common law)
• Procedural matters • Substantive (Decision)
matters
 Article 12 absorbs principles of common law and rules of
natural justice: specifically, “The act is in addition to and
not in derogation from the general principles of common
What may be law and the rules of natural justice.”
Common law grounds for judicial review:
reviewed:
Under A) Three “Is”:
1. Ilegality: The most obvious example of illegality is
Common law: where a body acts beyond the powers which are
prescribed for it. ..
2. Irrationality/Unreasonableness;
3. Impropriety (Procedural impropriety): natural justice:
fair unbiased hearing

B) Legitimate expectation
What may be
All Admininstrative actions:
reviewed:
Constitution These are expected to be
1. expeditious
of kenya 2. efficient
3. lawful
4. reasonable
5. procedurally fair
 What may be reviewed FAAA: Public Individual
actions
(2) A court or tribunal under subsection (1) may review an administrative action or decision, if–
(a) the person who made the decision–
i. was not authorized to do so by the empowering provision;
ii. acted in excess of jurisdiction or power conferred under any written law;
iii. acted pursuant to delegated power in contravention of any law prohibiting such
delegation;
iv. was biased or may reasonably be suspected of bias; or
v. denied the person to whom the administrative action or decision relates, a reasonable
opportunity to state the person's case; (opportunityto be heard) [Emphhasis added.]
 What may be reviewed: FAAA, Procedural issues

b) a mandatory and material procedure or condition prescribed by an empowering provision was

not complied with;
c) the action or decision was procedurally unfair;
d) the action or decision was materially influenced by an error of law;
e) the administrative action or decision in issue was taken with an ulterior motive or purpose
calculated to prejudice the legal rights of the applicant;
f) the administrator failed to take into account relevant considerations;
g) the administrator acted on the direction of a person or body not authorised or empowered by
any written law to give such directions;
h) the administrative action or decision was made in bad faith;
 Judicial review: bad faith and irrationality
• (h) the administrative action or decision was made in
bad faith;
• (i) the administrative action or decision is not rationally
connected to–
i. the purpose for which it was taken;
ii. the purpose of the empowering provision;
iii. the information before the administrator; or
iv. the reasons given for it by the administrator;
 Judicial review: various
• (j) there was an abuse of discretion, unreasonable delay or
failure to act in discharge of a duty imposed under any written
law;
• (k) the administrative action or decision is unreasonable;
• (l) the administrative action or decision is not proportionate to
the interests or rights affected;
• (m) the administrative action or decision violates the legitimate
expectations of the person to whom it relates;
• (n) the administrative action or decision is unfair; or
• (o) the administrative action or decision is taken or made in
abuse of power.
 Make an application to the High Court or
subordinate court upon which original
jurisdiction is conferred in accordance
with Article 22(3) of the Constitution.

How may one Conditions: Mechanisms for appeal or

review and all remedies available should
request for judicial have been exhausted. An exception
may be made in the interests of justice
review: FAAA,
Article 9 NB: An aggrieved party of the High
Court, may appeal to the Ct. of Appeal
Judicial review: illegaliity, ultra vires, unreasonable, lack of natural justice,
& good governance

Misc. Appl. No. 617 of 1. The NGO Coordination Board via lettter
2017 dated 2 Oct, 2017 prohibited the IDLO from
Republic. Vs. carrying out its activities in Kenya.
Fazul Mahamed, NGO 2. It further requested IDLO to obtain a
Coordination Board certificate of registration under the setion 10
and of the NGO Coordination Act to acquirre the
Irene Khan, Prof. legal status to operatee in Keenya.
Makau wa Mutua and 3. The same lettter also advised the Governor
Okiya Omtatah Okoiti of the Central Back of Keny and Others to
preserve the funds in the bank accounts
until further communication from the NGO
Coordination Bd.
Judicial review: natural justice, court does not go into merits of decisions

Cherono Gladys Vs. University of Nairobi, No 1 of 2018, (2020) eKLR

Courts are very reluctant to interefere in administrative decisions made by competent
bodies, in contractual matters that both parties have voluntarily entered into.

– “It is my opinion therefore, that court should be reluctant to substitute its own views as to
what is wise, prudent, and proper in relation to academic matters in preference to those
formatted by professional men possessing technical expertise and rich experience in actual
day to day working of educaitonal institutions and epartments controlling them. In many
instances , the courts have held that academic decisions are to be distinguished from
the administrative decisions of academic bodies. This is because administrative actions
are subject to judicial review while purely accademic decision are treated as beyond the
courts reach though in somes cases the courts can intefere.”

– Judge Ongeri relies on the judgement in Penina Wothaya Wachhira Vs. Methodist Universitty
2018) eKLR, “ . . . unless the decisions under challenge are constitutionally so fragile and
unsustainable.” or . . . “It is shockingly unreasonale, perverse and improper.”
 Judicial Review: natural justice, reasonablness, & proportionality

Republic Vs. • Judicial review orders of certiorari (to

University of Dedan review a decision of a lower ct and
Kimathi; Mutuku mandamus.
• Applicant suspended from University by
(Exparte) (Judicial
Students’ General Disciplinary Committee
review E003 of
for incitment through facebook page posts
2021 [2022] KEHC and non-adherence to public health rules,
358 (KLR) (6 May 2020 by failing to wear a mask.
2022) (Judgement) • Courts found in his favour and quashed
the decision of the Disciplinary Committee
and request that he be reinstated.
 Judicial
Review &
Remedies
Writs which are Common Law
remedies that are still in use
today
Different types of
writs
Five Prerogative Private law Statutory
remedies remedies
Overview of Remedies remediesreview
Available in Administrative
• Habeaus • Injunctions,
corpus • Declarations
• Mandamus • Damages
• Prohibition
• Certiorari
• Quo waranto
 remedies
Limitations of Judicial
Compensation not available: one would Courts must not re-exercise the
have to pursue another route administration body’s administrative
discretion

All remedies are discretionary: they may

be refused even though unlawfulness has
been established.
Prohibition
 • Article 51 (2) of the
• “Habeas Corpus applies
Writ of to all cases of illegal
Constitution of Kenya,
provides inter alia that:
confinement or detention
harbeus by which any person is (2) A person who is detained or
deprived of his liberty or
corpus by which the rightful
held in custody is entitled to
petition for an order of habeas
custody of any person is corpus.
withheld from the person
entitled thereto ... The The right to petition for a writ of
ultimate purpose of the habeas corpus allows the
writ of Habeas Corpus is prisoner or another person on
to relieve a person from behalf of the prisoner to object to
unlawful restraint. his own or another's detention or
imprisonment. The petition must
show that the court ordering the
detention or imprisonment made
a legal or factual error.
 • A type of writ, meant for Grounds Of Writ Of
Writ of rare use, by which an Certiorari
appellate court decides to
certurori review a case at its
(a) Excess of jurisdiction.
(b) Absence of jurisdiction
discretion.
(c) Violation of Natural
• The word certiorari
justice.
comes from Law Latin
(d) Fraud
and means "to be more
fully informed." A writ of
certiorari orders a lower
court to deliver its record
in a case so that the
higher court may review
it.
 Writ of Mandamus

• A (writ of) mandamus is an

order from a court to an
inferior government official
ordering the government
official to properly fulfill their
official duties or correct an
abuse of discretion.
Difference between mandamus and prohibition
 Writ of Quo Warranto
• Quo warranto means: “by what authority.”
Originally, the writ of quo warranto was a
writ of right for the King against the
subject who claimed or usurped any
office, franchise, liberty or privilege
belonging to the Crown, to inquire by what
authority he supported his claim, in order
to determine the right. Edward I used this
writ to prevent encroachment on his rights
and prerogatives.

• The maxim quo warranto means “by what

authority” and this writ is issued to prevent
a ‘usurper’ from wrongfully occupying a
substantive public office, enjoying certain
privileges and franchise from that public
office, when he does not have the
authority to do so. The person being
appointed to the public office must show
by what authority he occupies it, in order
for it to be considered a valid
appointment.
 Orders in Proceedings for Judicial Review (FAAA, No. 4 of
2015)
11. Orders in proceedings for judicial review: In proceedings for judicial review under section 8 (1),
the court may grant any order that is just and equitable, including an order–

(a) declaring the rights of the parties in respect of any matter to which the administrative action
relates;
(b) restraining the administrator from acting or continuing to act in breach of duty imposed upon the
administrator under any written law or from acting or continuing to act in any manner that is
prejudicial to the legal rights of an applicant;
(c) directing the administrator to give reasons for the administrative action or decision taken by the
administrator;
(d) prohibiting the administrator from acting in a particular manner;
(e) setting aside the administrative action or decision and remitting the matter for reconsideration by
the administrator, with or without directions;
 Orders in Proceedings for Judicial Review (FAAA, No. 4 of 2015 Conti . . .

(f) compelling the performance by an administrator of a public duty

owed in law and in respect of which the applicant has a legally
enforceable right;
(g) prohibiting the administrator from acting in a particular manner;
(h) setting aside the administrative action and remitting the matter
for reconsideration by the administrator, with or without directions;
(i) granting a temporary interdict or other temporary relief; or
(j) for the award of costs or other pecuniary compensation in
appropriate cases.
Orders in Proceedings for Judicial Review (FAAA, No. 4 of 2015 Conti .. .

(2) In proceedings for judicial review relating to failure to take an

administrative action, the court may grant any order that is just and
equitable, including an order-
(a) directing the taking of the decision;
(b) declaring the rights of the parties in relation to the taking of the
decision;
(c) directing any of the parties to do, or to refrain from doing, any act
or thing the doing, or the refraining from the doing, of which the
court or tribunal considers necessary to do justice between the
parties; or
(d) as to costs and other monetary compensation.
 Thank you for your attention

Questions, comments, issues, concerns . . .