Judicial Review Of Service Matters In Kenya And India: A Blessing Or A Curse
By Ratemo Tom Junior*
*B.Com., LL.B., LL.M., Ph.D., Research Scholar, Department of Post Graduate Studies in Law, Dr. Babasaheb Ambedkar Marathwada University, Aurangabad, Maharashtra, India. Mobile No.,: +919960779129; Email: firstname.lastname@example.org.
The new constitutional dispensation of Kenya and the Constitution of India have 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 legislations1. It is therefore, the solemn duty of the judiciary to keep different organs of the State within the limits of the power conferred upon them by the Constitution by exercising power of judicial review as sentinel on the quo vive to check not only that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large2 but to also ensure that the conduct, actions or decisions of public officers conform to the Constitution and the law3.
The designation “Supreme Court”, in general1, refers to the apex adjudicatory agency of the judicial system. The establishment of such a Court suggests, firstly, that consequences of the motions of the governance set-up, and the impacts of these on the rights and claims of private persons or groups of persons; or any disputed issues among such persons or groups or persons, fall to the domain of the Courts; and the determination made by the Courts is perceived as the legitimate recourse, by the principles of the Constitution. And such a demarcated platform of legitimacy in the broad sphere of dispute-settlement, narrows down still further, in a proper case, to the determination of one final Court, the Supreme Court.
One of the oldest Supreme Courts, that of the United States of America, was established in 1789, by Article III of that country’s Constitution, which vests it with the “judicial power of the United States”. The special role of that Court in the American constitutional order led to the donation of a wide mandate, clearly extending from the more limited and more structured disputes between persons or private organizations, to what may be perceived as political questions, touching on the powers of public agencies. The nine Justices of the American Supreme Court are appointed by the President, with the approval of the Senate – both agencies of clear political complexion.
Such a political dimension to the apex Court manifested itself in a different way in the case of the English House of Lords, which was essentially a parliamentary organ, but part of the membership was made up of a Judicial Committee of the most distinguished Judges, functioning professionally as the ultimate appellate Court. This judicial element of the House of Lords has, in recent times, been formally renamed the Supreme Court, and remains the apex Court.
Kenya’s Supreme Court, by contrast, is designed as simply a judicial agency, being the ultimate Court, appointed on the basis of professional qualifications prescribed by the Constitution of Kenya, 20102.
Supreme Courts in general, as they have the final word in all situations of dispute falling within their jurisdiction, labour in the context of certain challenges: notably those borne of intra-government activity, or of relations between government and non-government agencies – such relations so often involving issues of political colouration. Inevitably, the question arises whether the Supreme Court Judges have been guided by law, in its proper disciplinary identity, or by political preference, and whether they have not improperly dispensed their own political prejudice.
There are still other challenges. A notable one is the burden of the flow of the dispute-settlement business on to the Supreme Court Bench. Numerous matters come up in litigation before the Magistrates’ Courts, the High Court and the Court of Appeal. Must all appeals flowing from those Courts end up in the Supreme Court?
Although the Constitution3 provides that “Sovereign power under this Constitution is delegated to…the Judiciary and independent tribunals”, it is not the case that all appeals are to come before the Supreme Court. For this Court’s appellate jurisdiction is limited. Article 163(4) and (5) thus provides:
“(4) Appeals shall lie from the Court of Appeal to the Supreme Court –
(a) as of right in any case involving the interpretation or application of this Constitution; and
(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
“(5) A certificate by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.”
The Constitution has defined the Supreme Court’s mandate, for contestations on merits, in precise terms: (i) the Court has jurisdiction in respect of all appeals “involving the interpretation or application of the Constitution”; (ii) it has ordinary appellate jurisdiction, but this is limited to matters certified as being “of general public importance”; (iii) it has4 “exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140”; and lastly5 (iv) –
“The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.”
The jurisdiction of this Court, therefore, has been specifically defined, though scope is left for ordinary legislation to “make further provision for the operation of the Supreme Court”, and for the publication of subsidiary legislation to regulate the mode of exercise of the Court’s jurisdiction. By the Supreme Court Act, 20116, the Court may exercise inherent powers of upholding its authority, by way of correctional powers in contempt cases.
It is clear then that only a select set of matters will be lodged before the Supreme Court, as the ultimate custodian of the processes of dispute settlement; and this is the context in which the insider’s experience of the Court’s career, in the last two years of operation, may be recounted.
2. Meaning of the term ‘judicial review’:
The doctrine of judicial review is interpreted differently in different jurisdictions10. Judicial review primarily refers to the authority of the Court both to review the constitutionality or validity of legislative Acts and to pass upon the constitutionality or validity of executive and administrative acts11 and to disregard or direct the disregard of such acts as are held to be unconstitutional or as violative of applicable Statutes12. According to Kailash Rai, judicial review is the authority of the Courts to declare void the acts of the Legislature and the Executive if they are found in total violation of the provisions of the Constitution13. It is checking and cross checking the working of the other organs of the Government, while trying to uphold the ideal of ‘the rule of law’14. Alexander Bickel however, reminds us that, “[j]udicial review means not only that the Court may strike down a legislative action as unconstitutional but that it may also validate it as within constitutionally granted powers and as not violating constitutional limitations”15. In R. v. H. M. The Queen in Council, ex parte Vijayatunga16, Mr. Justice Simon Brown had observed that judicial review is the exercise of the Court's inherent power at common law to determine whether an action is lawful or not in a word to uphold the rule of law. In other words, it is a way for the superior Courts to supervise the lower Courts, tribunals and other administrative bodies to ensure that they make their decisions properly and in accordance with the law17. Reiterating the above views, Nwabueze has also observed that judicial review is the power of a Court, in appropriate proceedings before it, to declare a governmental measure either contrary to, or in accordance with, the Constitution or other governing law with the effect of rendering the measure invalid and void or vindicating its validity18. It is used for seeking: a mandatory order (i.e.,an order requiring a public body to do something, also known as an order of mandamus); or a prohibiting order (i.e., an order preventing the public body from doing something, also known as an order of prohibition); or a quashing order (i.e., an order quashing the public body’s decision, also known as an order of certiorari); or a declaration; or damages19.
3. Object, nature and scope of judicial review:
The underlying object of the doctrine of judicial review is principally aimed at, not only to protect the citizens from abuse or misuse of power by any branch of the State but also to ensure that no authority reaches a conclusion which is incorrect in the eye of law and that every individual receives just and fair treatment20. Besides, inMureithi and Two Others v. Attorney General and Four Others21, Justice Nyamu has hailed the object of judicial review to be an important pillar in vindicating the rule of law and constitutionalism. The nature of judicial review of administrative action has become gargantuan, extensive and expansive. The traditional limitations have vanished and the sphere of judicial scrutiny has been expanded. The Courts are no longer concerned with the merits or correctness of the decision, but with the manner in which the decision is taken or order is made22. The scope of judicial review in Kenya and India is somewhat circumscribed as compared to that in the U.S.A23. The scope generally varies from case to case24. In Kesavananda Bharati25 for e.g., the Supreme Court of India [hereinafter referred to as SCI] has decisively interpreted the scope of judicial review as follows: The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws, the Central or State Legislatures have acted within the four corners of the legislative lists earmarked for them ... the Courts also deal with the question as to whether the laws are made in conformity with … the Constitution… If the provisions of the Statute are found to be in violation of any Article of the Constitution which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions. Efforts have been made not only in India but also in Kenya to curtail the scope of judicial review in some constitutional areas26. Cases like the L. C. Golak Nath27,Bank Nationalisation28, Kesavananda Bharati29, Peter Ouma30, Attorney General and Registrar of Societies31,Nyongesa32, Onyango33, Kenya Hotel and Allied Workers Union34, etc., have raised passionate controversies both in Kenya and India. Despite such controversies, the doctrine of judicial review still has a vibrancy of its own with the passage of the new Constitutional dispensation in Kenya and its declaration as the basic feature of the Constitution in India35.
4. Grounds for judicial review of service matters:
In the case of Council of Civil Service Union36, Lord Diplock has suggested a three-fold classification of the various grounds on which an administrative decision can be reviewed by a Court i.e.,
i) Irrationality: Irrationality denotes unreasonableness in the sense of Wednesbury unreasonableness principle37in 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 it38. 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 case39.
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 applicable40 for e.g., failure to give each party to a dispute an opportunity to be heard, bias, failure to consult properly, failure to give adequate reasons, legitimate expectation, etc.
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. Illegality thus, crops in where there is jurisdictional error or an error patent of fact or law41. Illegality may also arise as follows:
- when the decision-maker acts ultra vires: A decision-maker acts ultra vires if he acts beyond his prescribed powers42, or where he uses a statutory power for a collateral purpose (namely, one which is alien to the purpose for which it was granted)43, or where he does not follow a particular procedure already prescribed in a Statute44,etc;
- unlawfully delegating power or fettering discretion: Where legislation confers power on a specified individual or body, the power cannot be delegated to another person or body45. Moreover, an authority is neither entitled to fetter the exercise of its discretion nor entitled to blindly to follow policy guidelines46;
- taking into account irrelevant considerations : A claim for judicial review can also lie where a competent authority has either disregarded a relevant consideration47, or taken into account an irrelevant consideration when reaching a decision48.
5. Judicial pronouncements on judicial review of service matters:
Judicial review has for decades been hailed to be a weapon for the helpless civil servants both in Kenya and India. Superior Courts are constitutionally empowered to review orders or decisions taken that are arbitrary or contrary to the established tenets of law49. The Supreme Court of Kenya, SCI, Court of Appeal and several High Courts within Kenya and India respectively have in a number of occasions exercised the power of judicial review to decide disputes over service matters. The Indian Apex Court has for instance observed that under Arts.32 and 226 of the COI, a writ Court has exclusive power to review orders or decisions passed by various authorities but, the Court does not sit as a Court of appeal but merely reviews the manner in which the decisions are made50. A writ is generally extraordinary, discretionary and can however be issued sparingly or in grave cases where competent authorities act wholly without jurisdiction or in excess of it or in total disregard of the principles of natural justice [hereinafter referred to as PNJ], etc.51
Whether a Court should look into the correctness of an order passed by an authority while exercising the power of judicial review, is a question which came before the SCI. The Court unequivocally observed that if a civil servant is dismissed from service and he subsequently prefers a petition under Art.226 of the COI, the High Court should not be concerned with the correctness of the order, but should rather be concerned with the question as to whether the rules and the law has been complied with or not and if the same has been complied with, the High Court should not extend its wings to further question the legality or propriety of the order, nor should it go into the merits of the findings and discuss whether the charges against the dismissed Government servant are fully established, or whether the punishment is too severe considering the nature of the charges. These are matters regarding which the appointing authority’s decision should be taken as final52.
A similar view was observed in a recent landmark judgement in Centre of PIL case53 where the SCI was of the opinion that the Court was not sitting in appeal over the opinion of the High Powered Committee but it was rather concerned with whether the object of the Central Vigilance Commission Act, 2003 had been fulfilled or not in the appointment of Shri. P. J. Thomas as Central Vigilance Commissioner. The Court further observed that:
- before making any recommendations for appointment, the High Powered Committee is mandated to take into account consideration as to what is good for the institution and not what is good for the candidate in question;
- personal integrity is a relevant factor to be considered; and
- the integrity of the decision making process should also ensure that the powers are exercised for the purposes and in the manner envisaged by the said Act, otherwise such recommendation will have no existence in the eye of law54.
Whether the Supreme Court or High Court can interfere with the discretionary power of an authority in exercise of its jurisdiction of judicial review is also a significant point to ponder? In this respect, both the Court of Appeal and SCI have in Kenya National Examination Council v. R. ex-parte Geoffrey Gathinji Njoroge and Others55 and Ramesh Chndra Agrarwal56 respectively held that interference with the discretionary power of an authority in exercise of its jurisdiction of judicial review cannot be permissible. The Courts can neither issue orders to limit discretion nor specify how the discretion can be used57.
In another occasion, the SCI was required to explain whether the superior Courts have the power to re-determine the method of appointment of a Government servant through judicial review and/or whether in absence of a rule regarding appointment to a post, some other rule can be applied? Regarding the first issue, the Court in Lila Dhar case58 explicitly observed that recruitment to civil service is ordinarily regulated by rules made under the proviso to Art.309 of the COI. It is therefore, not for the superior Courts to re-determine the appropriate method of selection and the relative weight to be attached to the various tests unless exaggerated weight has been given with proven or obvious oblique motives. In the second issue, the Court categorically observed that the rules of statutory interpretation or rules relating to the interpretation of a subordinate legislation, including rules under Art.309 of the COI, do not empower any judicial body to apply the law to a situation or object which was not contemplated by the Legislature while making a law or by Government while making a rule. It was thus, observed that the Central Administrative Tribunal stretched the recruitment rules committing an error of law in holding that in absence of any rule for appointment to a post, some other recruitment rules can be applied59.
Judicial review can also be invoked in matters relating to selection of candidates for appointment. The High Court, Court of Appeal and the Supreme Court have inherent powers to either uphold or quash a select list made for appointment60. For instance, the SCI has held that a candidate taking part in the process of selection cannot challenge the selection process after he/she fails to make it to the merit list61. If a candidate has any valid objection on a select list, he should challenge the same after the advertisement and should not participate in the selection process62. Besides, the Courts are obliged not only to be slow to interfere with the decisions of the Selection Committee63 but also not to encroach upon the power of the Selection Board by substituting its own views and opinions in the absence of oblique motive attributed to the members of the Board64.
Apart from the exercise of the power of judicial review in matters relating to recruitment/appointment of civil servants, the Courts can also exercise the power of judicial review in matters relating to promotion of Government employees. As a matter of fact, the power to promote an officer squarely lies on the executive and the Courts cannot therefore, usurp the said power for the benefit of a certain officer nor can the Courts promote or demote an official at will65. The Courts can only control or review a Government action66. Accordingly, they can strike down a Government order and direct the Government to reconsider a matter on correct principles of law67. For e.g., the select list which was prepared in an arbitrary way without considering the eligible member of a State service for promotion to Indian Administrative Service was set aside by the SCI68. Similarly, a seniority list can be revoked if it is illegal or irregular69.
The exercise of the power of judicial review in matters relating to fixation of pay of Government servants is another controversial subject over the decades not only in Kenya but also in India. With the new constitutional dispensation in Kenya and the COI, fixation of pay and determination of parity in duties of Government servants is the prime function of the Salaries and Remuneration Commission and the Executive respectively70. The scope of judicial review of administrative decisions in this regard is therefore extremely limited. For e.g., where the Government has prescribed a particular pay scale in respect of Government employees, it is not the business of the Court to examine how far should the revised pay scale be for a particular service. All the Court can do is to pronounce on the validity of the said fixation71. However, the Courts can interfere with not only the administrative decisions pertaining to the pay fixation and pay parity where they find such decisions to be unreasonable, unjust and prejudicial to the employees concerned72 or where they suffer from discrimination offending Arts.14, 16 and 39(d) of the COI73 but also where there is an adverse order disapproving the increments above efficiency bar of an employee74. Besides, after striking down such arbitrary decisions, the Courts are empowered to exercise the power of judicial review by directing the competent authority to take a fresh decision on the matter75.
Whether the Courts, while exercising the power of judicial review, can interfere with the order of punishment is another contentious subject that needs to be tackled? The general preposition of law is that, the disciplinary authority and on appeal, the appellate authority, being the fact finding authorities, have exclusive power to consider the evidence with a view to maintain discipline. The two organs are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct76. The power to punish an employee is therefore within the discretion of the said organs and the Courts do not ordinarily interfere nor can they substitute their own conclusion on a penalty and impose some other penalty77 unless it is found that:
- the enquiry proceedings or punishment is vitiated due to non observance of rules or PNJ including denial of reasonable opportunity for defence78; or
- the punishment is grossly or shockingly disproportionate to proved misconduct79; or
- the order issued is illegal, illogical, irrational and impropriety80; or
- the process of assessment is vitiated on the grounds of bias, mala fide or arbitrariness81; or
- the order is vitiated by procedural irregularities82; or
- no sufficient material had been brought on record to sustain the findings83; or
- there is non-application of mind84, etc.
Amicable settlement of disputes relating to service matters through judicial review has come to ensure that democracy is inclusive and that there is accountability of everyone who wields or exercises public power. But the question that inexorably arises is when is the appropriate time to apply for judicial review and can the Courts interfere with a decision taken by a competent authority in case of inordinate delay in seeking the remedy of judicial review? Generally, the applications seeking leave to commence judicial review proceedings must be made promptly as soon as grounds giving rise to the need for judicial review become known. Undue and inordinate delay in applying for judicial review is a major factor for consideration by the Court in deciding whether or not to exercise its discretion in either granting or denying leave depending on the circumstances of the case under consideration85. In Nasieku Tarayia v. Board of Directors, Agriculture Finance Corporation and Another86, the High Court in Nairobi has observed that inordinate delay of over one and half years in seeking the remedy of judicial review cannot be merited87 since Order 53 of the Civil Procedure Rules, 2010 and S.9 of the Law Reform Act, Cap 26 prescribes a period of six months from the date of the decision was quashed especially for the writ of certiorarito be granted88. Similarly, in E. Parmasivan case89, the SCI upheld the order of rejection of the claim of fixation of pay on promotion after a long gap of ten years of retirement on the ground of limitation. The Court has equally refused to quash the appointment of an officer when the challenge was made after ten years of appointment90.
Government servants who have successfully undergone the judicial review process expect full implementation of the decision taken by the Court. But the gargantuan question is whether the Court can compel the enforcement of judicial review orders? In some circumstances, it has proved to be difficult to ensure enforcement of the judicial review orders against public bodies especially in Kenya. This may be noted in the case of Republic v. Permanent Secretary Ministry of Water Resources Management and Development ex-parte Akamba Timber & Hardware Ltd91where Justice Onyancha stated:
In my view this position has made the Government departments adopt an attitude of carelessness in the manner they conduct themselves particularly where they are defendants. What is more unsatisfactory, however, is the conduct of the Attorney General’s office in relation to cases brought against the Government. More often than not, the Attorney General’s office will not file appearance or defence. Where by “good luck” such appearance if filed, defence will rarely be filed. Where even by great good luck the defence is filed, there will be no appearance or representation during the hearing of the suit. The result is that a judgement will be entered against the Government. The battle will however be only starting since the Government will ignore requests to settle the resultant decree. That is why I believe, decree holders have recently resorted to the use of the superior order ofmandamus to secure a settlement from the Government.
Similarly, in Center for Rights Education and Awareness and Others v. Attorney General92, a petition was filed by the civil society activist Patrick Njuguna, Charles Omanga and the Centre for Rights Education and Awareness against the appointment of the County Commissioners contending that they were unconstitutional. Justice Mumbi Ngugi of the High Court in Nairobi struck down the appointments and ruled that the Head of State not only lacked the legal authority to make such appointments but the appointments also ignored the principle of gender balance as provided for in the COK93.
After delivery of the judgement, the Attorney General Githu Muigai’s office wrote to the Internal Security Permanent Secretary Mutea Iringo advising against lodging an appeal on the ruling as the appeal was unlikely to get a favorable ruling94. However, the Internal Security and Provincial Administration Minister and his Permanent Secretary not only ignored the legal advice and filed an appeal against the High Court decision but they also asked the Commissioners to stay put in their offices95. The case is now pending at the Court of Appeal.
Kenya and India, being developing nations, for decades, the judiciary has come to control by judicial review every aspect of governmental and public functions. The doctrine of judicial review is available against a public body in a public law matter. In essence, two requirements need to be satisfied as noted above: first, the body under challenge must be a public body whose activities can be controlled by judicial review and secondly, the subject matter of the challenge must involve claims based on public law principles and not the enforcement of private law rights. However, in between these two generalities, other factors such as the nature of the function the public body performs, the extent to which there is any statutory recognition or underpinning of the body or the function in question and the extent to which the body has interwoven into a system of governmental regulation, may indicate that the body performs public functions and therefore subject to judicial review.
In spite of the fact that the judiciary has come to play a commendable role of reviewing civil service matters, it cannot however, entirely usurp the discretion of the public authority. The Courts must strive to apply an objective standard which leaves to the deciding authority the full range of choice which the Legislature is presumed to have intended and if the decision taken by an authority in any dispute is within the confines of reasonableness and the law, the Courts should refrain from intervening. However, the Courts are at liberty to intervene where decisions taken by public authorities are vitiated due to non observance of rules or PNJ including denial of reasonable opportunity for defence; or the punishment is grossly or shockingly disproportionate to proved misconduct of the Government servant; or where an order issued is illegal, illogical, irrational and impropriety and/or the process of assessment is vitiated on the grounds of bias, mala fide or arbitrariness, etc.
- See, Chapter Ten, infra note 8 and Part V and VI, infra note 9.
- See, R. v. Judicial Service Commission, Misc. Civil Application No. 1025 of 2003.
- Justice Alnashir Visram, ‘Review of Administrative Decisions of Government by Administrative Courts and Tribunals,’ Paper presented to the 10th Congress of the International Association of Supreme Administrative Jurisdictions, Sydney, March 2010.
- Mandal K. M., Laws on Public Service 46, New Delhi: Eastern Law House, 2003.
- 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 Cranch 137: 2 L Ed 60, the U. S. Supreme Court very clearly and specifically claimed it had the power of judicial review and it could review the constitutionality of the acts passed by the Congress, see, Faiz Pan Mohamad, ‘General Principle of Judicial Review on Administrative Action in Indian Legal System’ Law Journal, 20th September 2007 also available at: http://faizlawjournal.blogspot.in/2007/09/judicial-review-on-administrative.html; Jain M. P., Indian Constitutional Law 1694, (6th edn.,) Gurgaon: LexisNexis Butterworths Wadhwa Nagpur, 2010; Jonathan R. Siegel, ‘The Institutional Case for Judicial Review,’ Iowa Law Review, 2012, p. 1153.
- See generally, Republic v. Kenya Roads Board ex parte John Harun Mwau, Nairobi High Court, Miscelleneous Civil Application No 1372 of 2000. See also, Prof Ben Sihanya, ‘The Role of the Judiciary in the Accountability and Governance of the Devolved Government Structure,’ paper presented to the Institute of Certified Public Accountants of Kenya (ICPAK) 20th Economic Symposium at the Hilton Hotel, Nairobi, 24th February 2012.
- C. K. Takwani, Lectures on Administrative Law 236, Kucknow: Eastern Book Company, 2003.
- See, for e.g., Arts.2, 20, 23, 47 and 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.
- See, for e.g., Arts.13, 32, 131-136, 143, 226 and 260 of the Constitution of India, 1950.
- “Judicial Review”, http://en.wikipedia.org/wiki/Judicial_review, [accessed on 4th April 2013].
- Sathe S. P., ‘Judicial Activism: The Indian Experience,’ Washington University Journal of Law & Policy, Volume 6,  p.39; “Judicial Review: A Quick Guide”, http://property.practicallaw.com/9-385-9310#, [accessed on 27thMarch 2013].
- See, Paul Craig, Administrative Law, (7th edn.,) London: Sweet & Maxwell, 2012; Peter Kaluma, Judicial Review: Law Procedure and Practice, Nairobi: Law Africa Publisher, 2009; F. P. Feliciano, ‘The Application of Law: Some Recurring Aspects of the Process of Judicial Review and Decision Making,’ American Journal of Jurisprudence, 17-56, 19, 1992.See also, Jain M. P., Indian Constitutional Law, supra note 5 at 1692; 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.
- Kailash Rai, Administrative Law 395, Haryana: Allahabad Law Agency, 2006. See also, L. P. Berths, Constitution and the Supreme Court 16.
- “Judicial Review”, http://www.studymode.com/essays/Judicial-Review-190328.html, [accessed on 10th April 2013].
- Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at The Bar of Politics 16 (2nd edn.,) 1986.
- (1988) QB 322.
- “Judicial Review of Public Decisions”,http://www.citizensinformation.ie/en/government_in_ireland/national_government/standards_and_accountability/judicial_review_public_decisions.html, [accessed on 27th March 2013]; Richard Gordon Q. C., Judicial Review: Law and Procedure 1, (2nd edn.,) Sweet and Maxwell, 1996; Augustino S. L. Ramadhani, ‘Judicial Review of Administrative Actions as the Primary Vehicle for the Protection of Human Rights and the Rule of Law,’ A paper presented to the Southern African Chief Justices Conference, Kasane, Botswana 7th to 8th August, 2009.
- Nwabueze, B.O., Judicialism in Commonwealth Africa 229, 1977.
- Alexander Horne, ‘Judicial Review: A short Guide to Claims in the Administrative Court,’ Research paper presented to the House of Commons, London, 28th September 2006, p. 9.
- Judicial review is also a powerful invention for the enforcement of the rule of law, see, Republic v. Returning Officer, Kamkunji Constituency and Another ex-parte Simon Nganga Mbugua, (2008) eKLR; Republic v. Public Procurement Administrative Review Board and Another ex-parte Selex Sistemi Integrati, (2008) eKLR; Michael Fordham, Judicial Review handbook, (5th edn.,) London: Hart Publishing, Oxford, 2008; Nooor Maalim Hussein and Others v. The Minister of State for Planning, National Development and Vision 2030 and Others, (2012) eKLR.
- Mureithi and Two Others v. Attorney General and Four Others, Misc. Civil App. No 158 of 2005.
- See, Republic v. Vice-Chancellor, Jomo Kenyatta University of Agriculture and Technology ex-parte Cecilia Mwathi and Another, (2008) eKLR. See also, Republic v. Judicial Service Commission ex-parte Pareno, (2004) KLR 203 at 204; TheSupreme Court Practice, Vol 53/1-14/6, 1997; Union of India v. Upendra Singh, (1994) 3 SCC 357; R. v. Board of Post Graduate Studies, Kenyatta University ex-parte Amarjit Singh, Misc. Civil Case 1400 of 1995; Chief Constable of North Wales Police v. Evans, (1982) 1 WLR 1155, 1173; Union of India v. K. G. Soni, (2006) 6 SCC 794; Doabia T. S. (Justice), The Law of Services and Dismissals 3093, Vol. 2 (4th edn.,) Gurgaon: Lexis Nexis Butterworths Wadhwa Nagpur, 2011; Republic v. Minister for Finance and Another, (2012) eKLR; Republic v. Judicial Service Commission and Another ex-parte Joyce Manyasi, (2012) e KLR.
- In U. S. A., the American Supreme Court can declare any law unconstitutional on the ground of it not being in “due process of law”, but the Supreme Courts of both Kenya and India are yet to fully and extensively exercise such power.
- Vanshika Chaudhary, ‘Judiciary’s Long Tentacles and the Power of Judicial Review,’ 11th September 2011, also available at: http://www.youthkiawaaz.com/2011/09/judiciarys-long-tentacles-and-the-power-of-judicial-review/,[accessed on 27th January 2013.
- Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
- For e.g., the scope of judicial review is curtailed in India because of the fact that: a) the Indian Constitution is the longest written Constitution in the world and as such all provisions including the distribution of powers between the Union and the States have been elaborately enumerated; and b) that there is enumeration of fundamental rights along with their limitations in detail, see, “Short Essay on Judicial Review in India”,http://www.shareyouressays.com/93328/short-essay-on-judicial-review-in-india-818-words, [accessed on 10thJanuary 2013].
- L. C. Golak Nath v. State of Punjab, AIR 1967 SC 1643.
- R. C. Cooper v. Union of India, 1970 SC 564.
- Supra note 25.
- Peter Ouma v. The Public Service Commission of Kenya and Another, East African Court of Appeal, Civil Appeals and Applications No. 5 of 1977.
- Republic v. Attorney General and Registrar of Societies, Miscellaneous Application 769 of 2004.
- Nyongesa and Others v. Egerton University College, (1990) KLR 693.
- Onyango v. Attorney General, (1987) KLR 711.
- Kenya Hotels and Allied Workers Union v. Registrar of Trade Unions, (2005) eKLR.
- See, M. Nagaraj v. Union of India, AIR 2007 SC 71: (2006) 8 SCC 212.
- Council of Civil Service Union v. Minister for Civil Services, (1985) 1 AC 374. The SCI has also in High Court of Judicature at Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 reiterated similar grounds for judicial review after referring to State of A. P. v. S. Sree Rama Rao, AIR 1963 SC 1723 and B. C. Chaturvedi v. Union of India, (1995) 6 SCC 749.
- Bag R. K., Service Law of Government Employees 13 (1st edn.,) New Delhi: Eastern Law House Private Ltd., 2009.See generally, Gurdev v. State of Haryana, 2006 (5) SLR 756; Rameswar Prasad v. Union of India, (2006) 2 SCC 1.
- See generally, Council of Civil Service Unions supra note 36. See also, Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) 1 KB 223, HL “Judicial Review: A Quick Guide”, http://property.practicallaw.com/9-385-9310#, [accessed on 28th March 2013].
- Council of Civil Service Unions, ibid.
- Bag R. K., Service Law of Government Employees, supra note 37. See also, “How do you apply for Judicial Review in Kenya”, http://wonderkidonline.com/account1127/?p=25, [accessed on 29th March 2013].
- See, T. N. C. S. Corporation Ltd. v. K. Meerabai, AIR 2006 SC 3522. See also, Captain Geoffrey Kujoga Murungi v. Attorney General, Misc Civil Application No. 293 of 1993; “University of Nairobi: Judicial Review”,http://www.scribd.com/doc/104682308/Judicial-Review-in-Kenya, [accessed on 7th April 2013].
- See for e.g., R. v. London Boroughs Transport Committee, ex p Freight Transport Association Ltd., (1991) 1 WLR 828;Stewart v. Perth and Kinross Council, (2004) UKHL 16. See also, “Kenya: Judicial Review Crucial in War Against Corruption”, http://allafrica.com/stories/201101170228.html, [accessed on 1st April 2013].
- See, Bromley LBC v. Greater London Council, (1983) 1 AC 768.
- Supra note 19 at 13.
- Lumumba P. L. O., An Outline of Judicial Review in Kenya 58-83, University of Nairobi, 1999.
- R. v. Secretary of State for the Home Department, ex p Venables, (1998) AC 407.
- In the case of R. v. Secretary of State for the Environment, Transport and the Regions, (2001) UKHL 23, Lord Slynn has noticeably observed that if the Secretary of State takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the Court may set his decision aside.
- The above list, however, is not an exhaustive or comprehensive record of the traditional grounds for judicial review of service matters.
- In L. Chandra Kumar v. Union of India and Others, JT 1997 (3) SC 589, it has for e.g., been held that all decisions of tribunals are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned tribunal falls. The tribunals generally act like Courts of first instance and as such it is not open for the aggrieved Government servant to directly approach the High Court. See also, Pal Samaraditya, Law Relating to Public Service989, (3rd edn.,) Gurgaon: Lexis Nexis Butterworths Wadhwa Nagpur, 2011.
- See, Tata Cellular v. Union of India, AIR 1996 SC 11. See also, R. v Chief Justice of Kenya and others ex-parte Lady Justice Roselyn Naliaka Nambuye, Miscellaneous Civil Case No. 764 of 2004.
- See, Tata E. and L. Company v. Assistant Commercial Tax Officer, AIR 1967 SC 1401. See also, G. Verrappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192; Mandal K. M., Laws on Public Service, supra note 4; Jeanne Gacheche v. The Judges and Magistrates’ Vetting Board, Misc App. No. 295 of 2012; Republic v. The Industrial Court and Another ex-parte Joel Kandie Chebii and Another, (2012) eKLR.
- Tata Cellular, supra note 50. See also, State of M. P. v. Chintaman Sadashiv Vaishampayan, AIR 1961 SC 1623; Post Graduate Institute v. J. B. Dilwari, AIR 1988 SC 1348; Ranga Swamy J. v. Government of Andhra Pradesh, AIR 1990 SC 535 where the Supreme Court of India observed that a Court cannot interfere with the propriety of prescribing qualification for a post laid down by the Government; Union of India v. Upendra Singh, (1994) 3 SCC 357; R. v. Board of Post Graduate Studies, Kenyatta University ex-parte Amarjit Singh, Misc. Civil Case 1400 of 1995; State of Tamil Nadu v. Thiru K. B. Perumal, AIR 1996 SC 2474; Republic v. Minister for Finance and Another, (2012) eKLR;Republic v. Judicial Service Commission and another ex-parte Joyce Manyasi, (2012) e KLR.
- Center for PIL v. Union of India, AIR 2011 SC 1267. See also, R. v Chief Justice of Kenya and Others ex-parte Lady Justice Roselyn Naliaka Nambuye, Miscellaneous Civil Case No. 764 of 2004.
- Civil Appeal No. 266 of 1996.
- Council for Science and Industrial Research v. Ramesh Chndra Agarwal, (2009) 3 SCC 35. The view expressed inKendriya Vidyalaya Sangthan v. Sajal Kumar Roy, (2006) 8 SCC 671; Union of India v. R. N. Hedge, (1998) 8 SCC 731;Doordarshan Kendra, Trivandrum v. S. Kuttan Pillai, (1998) 8 SCC 736 was relied on. See also, “Supreme Court of India”, http://www.indiankanoon.org/doc/690945/, [accessed on 13th January 2013].
- Supra note 55.
- Lila Dhar v. State of Rajasthan, AIR 1981 SC 1777.
- See, B. N. Sinha v. Union of India, (1998) 3 SCC 157.
- Pal Samaraditya, Law Relating to Public Service, supra note 49 at 145.
- See, Trevidi Himanshu v. Ahmedabad Municipal Corporation, AIR 2008 SC 148. See also, University of Cochin v. N. S. Kanjoonjamma, AIR 1997 SC 2083; K. H. Siraj v. High Court of Kerala, AIR 2006 SC 2339, where the SCI has held that an unsuccessful candidate who participates in an interview process with the knowledge that for selection he has to secure a prescribed minimum pass mark, cannot turn around and subsequently contend that the provision of minimum marks was improper or that the process of interview was unfair or there was some lacuna in the process.
- Dhananjay Malik v. State of Uttaranchal, AIR 2008 SC 1913. See also, Dr. R. Murali v. Dr. R. K. Kamalakkannan, 2000 (1) SLR 600; N. Lokanandam v. Telecom Commission, AIR 2008 SC 2689.
- See, National Institute of Mental Health and Neuro Science v. Dr. Kalyan Raman, AIR 1992 SC 1806. See also, Dr. M. C. Gupta v. Dr. Arun Kumar Gupta, (1979) 2 SCC 339, the Courts are called to be slow in interfering with the opinion of the Selection Committee mainly because it is presumed that the committee consists of experts who are men of high status and also of unquestionable integrity; Dambar Singh Saraswat v. District Inspector of Schools, Aligarh, 1976 (1) SLR 549; Kamal Kumar Sinha v. Indira Gandhi Institute of Medical Science, 1993 (1) SLJ 67; Babita Prasad v. State of Bihar, 1993 SCC (L&S) 1076 - the cancellation of select list on bonafide grounds cannot be challenged by empanelled candidates; Sanjay Kumar v. Narinder Verma, (2006) 6 SCC 467; Siraj K. H. Siraj v. High Court of Kerala, AIR 2006 SC 2339. In State of Orissa v. Bhikari Charan Khuntia, AIR 2003 SC 4588, the Supreme Court of India has also held that the Court cannot interfere with the policy decision of the Government to abandon the recruitment process in order to absorb the surplus employees of other Departments since that cannot be said to be arbitrary.
- See, K. A. Nagamani v. Indian Airlines, AIR 2009 SC 3240. See also, Neelima Misra v. Harinder Kaur Paintal, AIR 1990 SC 1402; S. L. Vohra v. Union of India, 1993 (2) SLR 805; Mohinder Sani Garg v. State of Punjab, (1991) 1 SCC 662;supra note 60.
- Bag R. K., Service Law of Government Employees, supra note 37 at 212. See also, Reserve Bank of India v. C. L. Toora, (2004) 4 SCC 657, where the SCI pointed out that if a High Power Selection Board presided over by a retired High Court judge finds a candidate unsuitable for promotion to a higher grade, the High Court’s direction to consider the candidate for such promotion is incredibly perverse; State of West Bengal v. Manas Kumar Chakraborty, AIR 2003 SC 524.
- See, State of Mysore v. C. R. Seshadri, AIR 1974 SC 460.
- Ibid. See also, State of Mysore v. Syed Majmood, AIR 1968 SC 1113; Gurdial Singh Fijji v. State of Punjab, (1979) 2 SCC 368.
- See, R. S. Das v. Union of India, AIR 1987 SC 593.
- See, State of Mysore v. K. N. Chandrasekhar, AIR 1965 SC 532. See also, S. G. Jai Singhani v. Union of India, AIR 1967 SC 1427.
- See, Art.230, supra note 8 and Art.309, supra note 9.
- Infra note 75.
- See, K. T. Veerappa v. State of Karnataka, (2006) 9 SCC 406. See also, Haryana State Minor Irrigation Tubewells Corporation v. G. S. Uppal, AIR 2008 SC 2152; Manmatha Nath Ghosh v. Baidyanath Mukherjee, (2005) 13 SCC 630. In Monthly Rated Workman of Wadaka Factory of Indian Hume Pipe Company Ltd. v. The Indian Hume Pipe Company Ltd., 1987 (1) SLJ 17 (SC), it was also observed that the Courts can interfere where there is arbitrary reduction of wages.
- Suman Kumar Vamdeva v. Union Territory of Chandigarh, 1988 (1) SLJ (CAT) 12. See also, Dr. T. S. Raman v. Union of India, (1984) 2 SCC 142; Harbajan Singh Bains v. State of Punjab, 1986 (3) SLJ 22. In the rather case, it was held that the principle of pay fixation is applicable to all employees similarly placed and therefore, to deny the revised pay scale to the employees who did not knock the doors of the Court for legal proceedings is absurd and contrary to the established tenets of law.
- See, O. P. Gupta v. Union of India, AIR 1987 SC 2257. See also, State of Maharashtra v. Uttam Rao Rayala Nikam, (1994) 2 SCC 116, 117.
- S. L. Ahmed v. Union of India, AIR 1982 SC 1253.
- Singh Gurbax, Supreme Court on Service Laws 4691, Vol. 4 (2nd edn.,) Jaipur: Bharat Law Publications, 2011.
- See, Rita Biwott v. The Council for Legal Education, HCCC Misc. Application No. 1122 of 1994. See also, Partap Singh v. State of Punjab, AIR 1964 SC 72.
- See, Indian Oil Corporation Ltd. v. Ashok Kumar Arora, AIR 1997 SC 1030. See also, Mandal K. M., Laws on Public Service, supra note 4; Y. P. Sarabhai v. Union of India, AIR 2006 SC 2316; Republic v. Municipal Council of Nakuru ex-parte Samuel Thuo Kangea, (2006) eKLR.
- See, Government of Andhra Pradesh v. P. Chandra Mouli, (2009) 13 SCC 272. See also, Union of India v. S. S. Ahluwalia, AIR 2007 SC 2952; Government of India v. George Phillip, AIR 2007 SC 705. Contra, State of Meghalaya v. Mecken Singh N. Marak, AIR 2008 SC 2862.
- See, Council of Civil service Union supra note 36 at 37. See also, Republic v. Judicial Commission of Inquiry into the Goldenberg Affair & 2 Others ex-parte George Saitoti, Misc Civil Application No. 102 of 2006; Union of India v. Drawka Tiwari, (2006) 10 SCC 388.
- Union of India v. A. K. Narula, AIR 2007 SC 2296. See also, Sangna Ram v. State of Rajasthan, 2006 (1) SLR 260.
- See, Union of India v. S. Ganayuthan, AIR 1997 SC 3387.
- See, Narinder Mohan Arya v. United India Insuarance Com. Ltd., AIR 2006 SC 1748. See also, State of Orissa v. Md. Illiyas, AIR 2006 SC 258.
- See, State of Orissa v. Md. Illiyas, ibid. See also, Council of Civil service Union, supra note 36; Dr. Anil Kr. Saha v. State of West Bengal, 1985 (2) CHN 291.
- See, Regina v. London Borough of Hammersmith and Fulham and Others ex-parte Burkett and Another, (2002) UKHL 23. See also, O’Reilly v. Mackman, 2Ac 237, 280-281; R v. Dairy produce Quota Tribunal for England and Wales, ex-parte Caswell, (1990) 2Ac 738; Swan v. Secretary of State for Scotland, 1998 SC 479, 487.
- Nasieku Tarayia v. Board of Directors, Agriculture Finance Corporation and Another, (2012) e KLR. See also, Aga Khan Education Service Kenya v. Republic and Others, Civil Appeal No.257 of 2003.
- It is also worth pointing out that even where leave is granted, the Court at the end of the substantive proceedings for judicial review is entitled in the exercise of its discretion to refuse to grant judicial review remedies where there is evidence to show that the applicant has sat on his/her rights and failed to seek relief in good time and with due diligence.
- Time limitation is not stipulated for mandamus or prohibition but an applicant is required to file the application of judicial review within a reasonable time.
- E. Parmasivan v. Union of India, (2003) 12 SCC 270.
- See, Ashoke Kumar Sharma v. Chander Sekhar, 1993 SCC (L&S) 857. See also, Rekha Chaturvedi v. University of Rajasthan, 1993 SCC (L&S) 951; M. S. Mudhol v. S. D. Halegkar, (1993) 3 SCC 591; Mallick M. R., Service Law in India31, Calcutta: Eastern Law House Private Ltd., 2000.
- Civil Misc Application 173 of 2004.
- (2012) eKLR.
- Center for Rights Education and Awareness and Others v. Attorney General, (2012) eKLR.
- See, “AG advises Against County Commissioners’ Appeal”, http://www.capitalfm.co.ke/news/2012/07/ag-advises-against-county-commissioners-appeal/; AG to Contest Court’s Nullification of County Bosses”,http://www.standardmedia.co.ke/?articleID=2000060893; “County Commissioners in Office Despite Ruling”,http://www.standardmedia.co.ke/?articleID=2000061275&pageNo=1&story_title=; “Court Nullifies County Bosses Appointment”, http://www.standardmedia.co.ke/?articleID=2000060880; “PM Faults Appeal Against Ruling Over County Bosses”, http://www.nation.co.ke/News/politics/PM-faults-appeal-against-ruling-over-county-bosses--/-/1064/1453294/-/10kisptz/-/index.html, [accessed on 29th March 2013].
- See, Francis Mureithi, ‘Kenya: Githu Advises Against County Bosses Appeal’, The Star, 6th July 2012. See also, “Haji Appeals to Protect County Commissioners”, http://www.capitalfm.co.ke/news/2012/07/haji-appeals-to-protect-county-commissioners/; “President Has Right to Appeal, But It’s Better to Recall County Commissioners”,http://www.nation.co.ke/oped/Letters/-/440806/1457396/-/bh8tr8/-/index.html; “Ministry Files Appeal Notice Over County Bosses”, http://www.nation.co.ke/News/politics/Ministry-files-appeal-notice-over-County-bosses/-/1064/1452048/-/rq0h06/-/index.html; “Government Appeals County Commissioners Ruling”,http://citizennews.co.ke/news/2012/local/item/2362-government-files-appeal-on-county-commissioners-ruling, [accessed on 2nd April 2013].