Grounds for Judicial Review in Kenya – An Introductory Comment to the Fair Administrative Action Act, 2015
October 5, 2015
By Ochiel J Dudley*
This article contributes to the ongoing debate on the scope and extent of judicial review under the Constitution of Kenya, 2010. In this regard, the article draws attention to the evolving grounds for judicial review under the Constitution and in the context of the recently passed Fair Administrative Action Act, 2015. The article gives a synopsis of the Act and laments the fact that nearly three months after the passage of the Act, neither litigants nor the court’s radars seem to have caught wind of the law. Accordingly, the article urges litigants to make use of the grounds for judicial review under the Act. More significantly though, the judiciary is encouraged to let go of the common law traditions and to interpret judicial review in the direction signalled by the constitution – as a vindication of the Bill of Rights and fair administrative action.
In a recent article “The Constitution of Kenya 2010 and Judicial Review: Why the Odumbe Case Would be Decided Differently Today” I observed that the entrenchment of the power of judicial review as a constitutional principle should of necessity expand the scope of the remedy beyond the confines of the public-private power dichotomy. As a result, I suggested that judicial review orders should now be applicable against any private person, body or authority who exercises a judicial or quasi-judicial functions by which a right or fundamental freedom of a person has been or is likely to be adversely affected. In conclusion, I proposed that the Constitution of Kenya, 2010 had rendered the Odumbe case bad law on the point that private bodies are not amenable to judicial review. Parliament has since vindicated some of these views.
In May, Parliament passed the Fair Administrative Action Act, 2015 to give effect to Article 47 of the Constitution. The Act is set out in some four parts. Part One deals with Preliminary matters while Part Two focuses on Fair Administrative Action. Parts Three and Four provide for Judicial Review and Miscellaneous matters, respectively. As no commencement date is indicated, the Act commenced on 17th June, 2015 fourteen days after its publication in the Gazette.
Indeed the Act radically alters the judicial review landscape in Kenya in conformity with the transformative Constitution of Kenya, 2010 which permits judicial review against both private and public bodies.
To begin with, the Act defines “administrative action” to include “powers, functions and duties exercised by authorities or quasi-judicial tribunals” or “any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates”. The decisive question is therefore whether the administrative action or decision complained against is attributable to an authority or quasi-judicial tribunal, on one hand or to any other person, body or authority but affects the legal rights or interests of an affected party, on the other hand. The implication is that the decision of a public authority or quasi-judicial tribunal is outright amenable to judicial review while the decision of any other person or body is amenable to judicial review if it affects the legal rights or interests of the concerned party.
While the expansion of the scope of judicial review to private claims is apt, “legal rights or interests” is too wide a criteria and the phrase must in due course be interpreted to mean “rights or fundamental freedoms” or in long form “legal rights or interests, derived from the Bill of Rights”. Such an interpretation would be consistent with the language in the rest of the Act and the Constitution. The proposed interpretation will also ensure that in the case of private parties, judicial review is preserved for the vindication of purely constitutional rights while ordinary civil disputes continue to be adjudicated by the civil courts. Otherwise there is an inherent danger that any dispute between any two parties can be converted into a claim for judicial review thus opening the floodgates. I am unable to conceive of any civil case or dispute which is not about a legal right or interest.
In recognition of the horizontal application of the Bill of Rights, Section 3 of the Act extends the scope of fair administrative action and judicial review to the administrative actions of public and private persons or bodies. The section expressly states that the Act applies to all state and non-state agencies including any person exercising administrative authority; performing a judicial or quasi-judicial function under the Constitution or any written law; or whose action, omission or decision affects the legal rights or interests of any person to whom the action, omission or decision in question relates.
Fair Administrative Action
Section 4 re-echoes Article 47 of the Constitution and reiterates the entitlement of every Kenyan to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. At the same time, every person has to be given written reasons for any administrative action taken against him. In all cases where a person’s rights or fundamental freedoms is likely to be affected by an administrative decision, the administrator must give the person affected by the decision: prior and adequate notice of the nature and reasons for the proposed administrative action; an opportunity to be heard and to make representations; notice of a right to a review or internal appeal against the decision where applicable; a statement of reasons; notice of the right to legal representation and right to cross-examine; as well as information, materials and evidence to be relied upon in making the decision or taking the administrative action. It is noteworthy that some of these elements are mandatory while some are only required where applicable.
Subsection 4 further obliges the administrator to accord affected persons an opportunity: to attend proceedings in person or in the company of an expert of his choice; a chance to be heard; an opportunity to cross-examine persons who give adverse evidence against him; and request for an adjournment of proceedings where necessary to ensure a fair hearing.. The right to appear with an expert is said not to limit the right to appear or be represented by a legal representative. The courts may soon be called upon to interpret the meaning of “legal representative”. Does the phrase mean “advocate” or was Parliament deliberate in allowing, for instance, paralegals, union officials, floor representatives or work colleagues to appear for or to represent parties in administrative action. The latter interpretation seems most accurate, administrative action may at times arise in situations where representation by an advocate is expensive or unnecessary. This however, must not be seen as an invitation for unqualified persons to perform the work of advocates for gain.
The Act allows administrators the leeway to use their own procedures of administrative action if these procedures are written in law and conform to the principles in Article 47 of the Constitution. The implication is that for administrative action may be undertaken in accordance with the procedure set out in a law. Some of the foreseeable examples include the procedure for removal from office of various public officers or the procedures of various tribunals.
Administrative Action Affecting the Public
In recognition of the status of public participation as a national value and principle of governance under Article 10, the Act codifies public participation as an integral part of public administrative action. Accordingly, where any proposed administrative action is likely to materially and adversely affect a group of persons or the general public, the administrator must issue a public notice of the proposed administrative actions and invite public views on the proposal. The administrator must also consider all relevant and material facts.
In case the administrator proceeds and takes the proposed administrative action in the notice, the Act requires that administrator to not only give reasons for the decision or administrative action, but also to issue a public notice specifying internal mechanism available for appeal including the format and timelines for the appeal.
The section however does not oust the powers any person to file a complaint with the Commission on Administrative Justice. One may also apply for review of an administrative action or decision by a court of competent jurisdiction under the Constitution or any written law. Similarly, there is latitude to institute any legal proceedings for such remedies as may be available under any written law.
Access to Information on Administrative Action
Though the section header to Section 6 is entitled “Request for reasons for administrative action”, the subject of the section is really access to information on administrative action. To this end, the section entitles persons affected by any administrative action to be supplied with information necessary to facilitate their application for appeal or review. The information, which must be supplied in writing within three months, may include reasons for the administrative action and any relevant documents relating to the matter. Where an administrator does not give an applicant reasons for an administrative decision, there is a rebuttable presumption that the action was taken without good reason.
However, the Act provides that an administrator may be permitted to depart from the requirement to furnish adequate reasons if such departure is reasonable and justifiable in the circumstances. The administrator must inform the person of such departure. The implication of this provision is that the section allows a limitation of the right to information under Article 35 and the right to fair administrative action under Article 47.
However, the seems to run afoul of Article 24 of the Constitution as it permits a limitation of rights so long as such a departure is deemed “reasonable and justifiable” in the circumstances as long as the person is “informed”.
Contrary to this, Article 24 of the Constitution requires that any departure must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The departure must also take into account all relevant factors, including the nature of the right of access to information and fair administrative action, importance of the purpose of the departure and the nature and extent of the departure. At the same time, the departure must take into account the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and also the relation between the departure and its purpose and whether there are less restrictive means to achieve the purpose.
The other inherent problem with this provision is that it amounts to an uncanalised delegation of legislative authority; a tyranny of discretion which patently violates the rule against excessive delegation and offends Article 94(6) of the Constitution. Article 94(6) forbids excessive delegation of legislative authority and outlines the mandatory criteria for delegation of legislative authority. Any delegation of legislative power must expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority.
In South Africa, the provision has been identified as a vanguard to protect the Bill of Rights by requiring legislative guidance as to when limitation of rights will be justifiable.Indeed, the constitutional obligation on the legislature to promote, protect and fulfil the rights entrenched in the Bill of Rights entails that, where a wide discretion is conferred upon a functionary, guidance should be provided as to the manner in which those powers are to be exercised. Comparatively in the United States, the doctrine of forbids any delegation unless Congress provides an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.
Judicial Review Jurisdiction
The Act ends the monopolistic reign of the High Court as the only body capable of granting judicial review.Indeed, under section 7(1) of the Act, any person who is aggrieved by an administrative decision may apply for review of the decision to a court in accordance with section 8 or a tribunal in exercise of its jurisdiction conferred in that regard under any written law. It is noteworthy that the section does not define “judicial review”. However, it is possible to derive a meaning of judicial review from the body of the Act – “review of an administrative action or decision by a court or tribunal.”
Grounds for Judicial Review
Subsection (7)(2) outlines the circumstances where a court or tribunal may review an administrative action or decision.[ 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. 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.
The requirement of a “reasonable opportunity to state ones case” is an apparent codification of the common law rule of natural justice audi alteram which literally means hear the other side, and prohibits the condemnation of a person unheard. The requirement seems to have little to do with the “right to a fair hearing under Article 50”, which mostly relates to criminal trials.
Besides, the grounds for judicial review already stated, other instances include situations non-compliance with mandatory and material procedures and conditions precedent, procedural unfairness and errors of law. Moreover, judicial review is available where an administrator acts on ulterior motives calculated to prejudice the rights of the applicant, fails to take all relevant considerations into account, acts on the basis of illegal delegation and also in bad faith. In addition, an administrative decision is susceptible to judicial review where there is no rational connection between that decision and either the purpose for which it was taken, the purpose of the empowering provision, information before the administrator, or reasons given by the administrator. Further grounds include abuse of discretion and unreasonable delay or failure to act in discharge of a duty imposed under any written law. Administrative actions which are unreasonable, disproportional, in violation of legitimate expectation, unfair or which result from or in abuse of power are also liable to judicial review.
However, applicants relying on the grounds or unreasonable delay or failure to act must prove that the administrator is under a duty to act in relation to the matter in issue, that the action is required to be undertaken within a period specified in law, and that the administrator has not acted within the prescribed period.This means that failure to act or unreasonable delay as a ground for judicial review is only applicable against public bodies. The Act requires the existence of a duty specified in law together with a prescribed period within which the administrative action must be undertaken.
The necessary implication is that under the Act the position remains that mandamus only be granted against public bodies. Mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.
Period for Determination of Judicial Review Applications
The law requires that judicial review applications must be determined within ninety days of filing the application. The judiciary must not that the expansion of the scope of judicial review to include private parties, will of necessity increase the number of applicants approaching the courts for judicial review. This, together with the restricted time-line of ninety days will require the courts to be adequately staffed so as not to get overwhelmed.
Procedure for Judicial Review
In part solution to the problem identified in the previous paragraph, the Act envisages that subordinate courts will be empowered to adjudicate some judicial review applications. Accordingly, section 9(1) provides that aggrieved parties may without unreasonable delay approach the High Court or a subordinate court upon which original jurisdiction has been conferred under (sic) Article 22(3) of the Constitution. There is a drafting error in this section as the correct reference is to Article 22(2) which requires Parliament to enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Article 23 only lists some of the appropriate reliefs, including an order of judicial review, that a court may grant in proceedings to enforce the Bill of Rights.
The Act requires applicants to exhaust internal mechanisms for review or appeal and all remedies available under any other written law before making an application to court. Otherwise the court will direct the applicant to first exhaust alternative remedies before instituting judicial review applications. Nevertheless, in exceptional circumstances the court may on application exempt applicants from the obligation to exhaust any remedy in the interest of justice. Parties aggrieved by orders of the High Court in judicial review proceedings may appeal to the Court of Appeal. There is silence as to the position on appeals from subordinate courts to the High Court. It perhaps expected, that consistent with Article 165(3)(e) the legislation contemplated under Article 23(2) will also outline the procedure for appeals from the subordinate courts to the High Court in judicial review cases.
Procedural Technicalities and Rules
The Act eschews undue regard to procedural technicalities in judicial review applications. This echoes the language of Article 159 and is perhaps in recognition that judicial review is a tool in defense of the Bill of Rights. The Constitution demands that formalities relating to proceedings to enforce the Bill of Rights be kept to a minimum, and that the court shall in appropriate cases entertain proceedings on the basis of informal documentation. Nonetheless, the Chief Justice has the discretion to make rules regulating the procedure and practice in matters of judicial review.
Reliefs in Proceedings for Judicial Review
The Act expands the scope of judicial review reliefs beyond the traditional three – mandamus, prohibition and certiorari. In this regard, section 11 empowers the court to grant any order that is “just and equitable” including the ten reliefs expressly listed in the section. The term just and equitable must of necessity be interpreted to mean “appropriate relief” which is the term used in Article 23(3). The same has been interpreted by the court in Nancy Makokha Baraza v Judicial Service Commission as beingwide and unrestrictive and also inclusive rather than exclusive and to allow the court to make appropriate orders and grant remedies as the situation demands and as the need arises.
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. The Act elaborates further reliefs in proceedings relating to failure to act. The court may direct the taking of the action, declare the rights of parties, direct parties to do or refrain from doing any act, or make an orders as to costs or other monetary compensation.
Judicial Review Under the Constitution v Judicial Review Under the Common Law?
The provisions of the Act are said to be in addition to and not in derogation from the general rules of the common law and the rules of natural justice. Coincidentally, Odunga J, in Republic v Director of Public Prosecution Ex Parte Chamanlal Vrajlal Kamani  eKLR has recently urged that:
“the grounds in judicial review applications be developed and the grounds for granting relief under the Constitution and the common law be fused, intertwined and developed so as to meet the changing needs of our society so as to achieve fairness and secure human dignity… But care should be taken not to think that the traditional grounds of judicial review in a purely judicial review application under the Law Reform Act and Order 53 of the Civil Procedure Rules have been discarded or its scope has left the airspace of process review to merit review except in those cases provided in the Constitution. In other words the categories of judicial review grounds are not heretically closed as opposed to their being completely overtaken…”
The judge seems to be saying that the court must while granting judicial review as a constitutional principle also concurrently continue granting judicial review on the traditional grounds of judicial review in (sic) purely judicial review applications under the Law Reform Act and Order 53 of the Civil Procedure Rules, 2010.
Both section 12 and Odunga J’s dicta are a recipe for confusion. Professor James Thuo Gathii has posed the warning in “The Incomplete Transformation of Judicial Review” that the Kenyan judiciary must guard against the development of a two-tracked system of judicial review – with cases influenced by the common law, on the one hand, and cases decided under the 2010 Constitution’s principles of judicial review on the other – as those two tracks are likely to undermine the establishment of a vibrant tradition of judicial review as required by the 2010 Constitution.”
The Supreme Court has indeed in the case of CCK v Royal Media Services Ltd  eKLR recognized that the power of any judicial review is now found in the constitution. Similarly, in the South Africa case of Pharmaceutical Manufacturers Association of South Africa in re ex parte President of the Republic of South Africa & Others 2000 (2) SA 674 (CC) at 33, a case cited in part by Odunga J, it was held that:
“[t]he common law principles that previously provided the grounds for judicial review of public power have been subsumed under the Constitution and, insofar as they might continue to be relevant to judicial review, they gain their force from the Constitution. In the judicial review of public power, the two are intertwined and do not constitute separate concepts”. The court went further to say that there are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. Rather, there was only one system of law shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.”
In the CCK case the Supreme Court cautioned that unthinking deference to cannons of interpreting rules of common law, statutes, and foreign cases can subvert the theory of interpreting the constitution. This caution was repeated in Judges and Magistrates Vetting Board v Centre for Human Rights and Democracy  eKLR that “…the Constitution should be interpreted in a holistic manner; that the country’s history has to be taken into consideration; and that a stereotyped recourse to the interpretive rules of the common law, statutes or foreign cases, can subvert requisite approaches to the interpretation of the Constitution”
At the same time, Kwasi Prempeh in Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa foretells a problem with the application of the common law as the default rule and norm for framing and analyzing of even constitutional questions. He opines that the common law, in its method, substance, and philosophical underpinnings, carries with it elements and tendencies that do not accord with the transformative vision reflected in modern bills of rights. Much of the problem, he notes, stems from the basic constitutional and jurisprudential paradigm upon which English common law is built, namely Austinian positivism and Diceyian parliamentary sovereignty, notions which are incompatible with the transformative ideals.
Similarly, Davis and Klare in Transformative Constitutionalism and the Common and Customary Law express an apprehension that transitional nations cannot progress to social justice with a legal system that rigs a transformative constitutional superstructure onto a common law base inherited from the past. They therefore propose a context-sensitive “transformative methodology” informed by the Bill of Rights and specifically by the constitutional aspiration to be the legal foundation of a just, democratic and egalitarian social order.
And the fears above are well founded. Under the common law judicial review is exercisable as a prerogative writ issued to supervise administrative authority. Contrastingly, under the Constitution of Kenya, 2010 judicial review in Kenya has become “normalized as a basic accoutrement of the rule of law within a constitutional democracy.” The difference in the theory of judicial review has implications in its practice. For instance, while the Constitution permits judicial review of the administrative actions of private parties, the common law only permits the judicial review of the administrative acts of public bodies. The Odumbe Case illustrates the injustice this approach can work where a private body exercises an administrative power that affects the rights of an applicant.
For this reason, and more, section 8 and 9 of the Law Reform Act, Cap 25 must be immediately repealed. Pending such repeal, the court must remain cognisant of judicial review as a constitutional tool for the vindication of fundamental rights and freedoms, particularly the right to fair administrative action. Any conflict between the Fair Administrative Action Act, 2015 and the sections 8 and 9 of Cap 25 must be resolved in favour of the former. It is the Act envisaged by Article 47(3) and therefore has a constitutional underpinning and reflects the will of the people of Kenya more closely. Conversely, sections 8 and 9 of the Law Reform Act, Cap 25 must, if necessary, be interpreted with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.
Regulations and Transitional Provisions
The Act empowers the Cabinet Secretary in consultation with the Commission on Administrative Justice to make regulations for the better carrying out of the provisions of the Act, requiring the approval of the regulations by Parliament.
The Section is however an act of excessive delegation in breach of Article 94(6).The section does not expressly specify the limits of the delegated legislative authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority. The attention of legislative drafters must be drawn to the existence of Article 96(4) as there should be no excuse for non-compliance with the Article five years after the promulgation of the Constitution. The judiciary must also take decisive action against regulations made or decisions taken on the basis of delegated authority which does not comply with Article 96(4).
Be that as it may, as to transitional provisions, the Act applies to all proceedings in court as at the commencement date, but without prejudice to the validity of anything previously done. However, the practice and procedure obtaining before the enactment of the law shall be followed if it is impracticable to apply the proceedings of the Act; the Chief Justice in case of difficulty or doubt, the Chief Justice is empowered to issue practice notes or directions as to the procedure to be adopted. The section is similarly in violation of Article 96(4) for the reasons previously discussed.
The Act is a step forward in the recognition of the constitutionalisation of the theory and practice of judicial review in Kenya. Apart from the law’s unnecessary efforts to sustain the common law prerogative of judicial review, the purpose and objects of the Act are in consonance with the Constitution. The Act effectively settles the debate as to whether judicial review is efficacious against private parties and renders decisions like Odumbe bad law. The scope and grounds of judicial review have both changed and in recognition of this, the courts must avoid over-relying on old precedents based on the common law to the detriment of claimants for fair administrative action under Article 47.
We hope that this introductory comment has done enough to illustrate the Act is an engaging and important development in the law and must therefore be studied by members of the judiciary and others whose administrative actions are affected by its provisions and by lawyers who practice in the field of judicial review. If both the courts and litigants become reasonably familiar with the Act’s provisions, the transition from the common law practice of judicial review should be completely hassle free.
* The writer is an Advocate of the High Court of Kenya and a Legal Researcher in the Laws of Kenya Department at the National Council for Law Reporting
 National Council for Law Reporting (Kenya Law), Bench Bulletin, Issue 29, April – June 2015 at pp.18
 Act No 4 of 2015, assented 25th May, 2015; commencement date 25th June, 2015
 See Article 116(2) of the Constitution
 Section 2
 See Article 47(2) “If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
 Section 4(1)
 Section 4(2)
 See Section 2 of the Advocates Act, Cap 2
 Section 4(6)
 Section 5(1)(c)
 Ibid subsection (d)
 Section 5(2)
 Section 6(1)
 Section 6(2)
 Section 6(4)
 Section 6(4)
 Section 6(5) ibid
 Article 24, Constitution of Kenya, 2010
 Dawood v Minister of Home Affairs  (8) BCLR 837 at 54
 Rensburg v Minister of Trade and Industry  ZACC 18 at 25
29] See J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928)
 See section 8 and 9 of the Law Reform Act, Cap 25
 See Section 7(2) on the grounds for judicial review
 See Pashito Holdings Limited v Ndungu eKLR; Msagha v Chief Justice  2 KLR 553; Republic v Chief Justice ex parte Moijo Mataiya Ole Keiwua  eKLR;
 See Judicial Service Commission v Gladys Boss Shollei  eKLR at 68
 Section 7(2)9b)-(d)
 Ibid (e) to (h)
 Section 7(i)
 Ibid sub-section (2)(j)
 Ibid (k) to (o)
 Section 7(3)
 See Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge  eKLR
 Section 8
 Article 23(2)
 Ibid Constitution of Kenya, 2010
 Section 9(2)
 Ibid section 9(3)
 Ibid section 9(4)
 Ibid Section 9(5)
 Section 10(1)
 Article 22(3)(b)
 Section 10(2)
 Section 8 Cap 25 ibid
  eKLR
 Section 12
 Cited in Willy Mutunga (CJ), The 2010 Constitution of Kenya and Its Interpretation: Reflections from the Supreme Court Decisions, University of Fort Hare Inaugural Distinguished Lecture Series, October 16, 2014
 See the dicta of Rawall DCJ at para 403 to 404
 Ibid at 357-358
 at 206
 Vol. 80:1 Tulane Law Review 2006 at pp 72
 Ibid at para. 26
 (2010) 26 SAJHR at 405
 Ibid at 411
 Ibid at 412
 See J.W.F. Allison, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law, Oxford University Press, 2000 at pp. 228
 See Thomas Poole, Judicial Review at the Margins: Law, Power and Prerogative, LSE Law, Society and Economy Working Papers 5/2010
 Supra note 1 ibid
 See section 7(1) of the Sixth Schedule
See Article 94(6) ibid
 Section 14(1)
 Section 14(2)