UNIVERSITY OF NAIROBI

FACULTY OF LAW-KISUMU CAMPUS

GPR 209: ADMINISTRATIVE LAW II

LESSON 1: DEFINITION AND NATURE OF JUDICIAL REVIEW

Black’s Law dictionary (8th edition) defines judicial review as:

1. A court’s power to review the actions of other branches of government or
levels of government; esp., the court’s power to invalidate legislative and
executive actions as being unconstitutional.

2. The constitutional doctrine providing for this power.

3. A court’s review of a lower court’s or an administrative body’s factual or legal

findings.
Therefore, judicial review is an examination by the court of the manner in which an
administrative agency made a decision or did/did not do an act.

The purposes of judicial review include:

1. To prevent excessive exercise of powers by administrative bodies and

officials.

2. To ensure that an individual is given fair treatment by administrative

authorities.

3. To keep administrative excesses in check.

4. To provide a remedy to those aggrieved as a result of excessive exercise of

power by administrative bodies.
 5. To support the rule of law and democratic governance.

Inherent Jurisdiction of the High Court

In Kenya (under Articles 165(6) (7) of the Constitution of Kenya, 2010), judicial
review of administrative action refers to the inherent jurisdiction of the High Court
of Kenya which empowers it to scrutinize the decisions and functions of
administrative bodies. The High Court does so by declaring, quashing, preventing,
commanding, or redressing a particular action.

However, Section 9(1) of the Fair Administrative Action Act, 2015 contemplates
that subordinate courts may also hear and determine judicial review applications.
This may happen if subordinate courts have been conferred with that jurisdiction
under Article 23(2) of the Constitution of Kenya, 2010, which provides that:
Parliament shall 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.

Sui Generis Jurisdiction

It is to be understood that the judicial review jurisdiction of the High Court is sui
generis, that is, it is a unique and special jurisdiction. Thus, judicial review is neither
a civil nor criminal process.

Indeed, in Commissioner of Lands v Kunste Hotel Limited [1997] eKLR, the Court
of Appeal sitting at Nakuru stated: “By virtue of the provisions of Section 7 of the
Administration of Justice (Miscellaneous Application) of 1938 of United Kingdom
which is applicable in this country by reason of Section 8(2) of the Law Reform Act,
prerogative writs were changed to be known as orders except the writ of Habeas
Corpus. So Section 8(1) of the Law Reform Act denies the High Court the power to
issue the orders of Mandamus, Prohibition and Certiorari while exercising civil and
criminal jurisdiction. What this means is that…in exercising the power to issue or
not to issue an order of certiorari, the court is neither exercising civil nor criminal
jurisdiction.”
In terms of its historical origins, judicial review in Kenya is founded on judicial
review in England. This is because Kenya’s legal system is modeled along the
English legal system given the colonial heritage. 1

Brought in the Name of the Republic

Given its special nature, a judicial review application is usually brought in the name
of the Republic. Thus, the Republic is theoretically the Applicant; the person whose
decision is the subject of judicial review is known as the Respondent; while the
aggrieved person is known as Exparte (in practice, this is the applicant).

A typical title of an application for judicial review is as follows:

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. APP. (JR) NO……………OF 2023

IN THE MATTER OF ARTICLE 47(1) OF THE CONSTTUTION OF

KENYA, 2010

IN THE MATTER OF THE KENYA REVENUE AUTHORITY ACT, 1995

IN THE MATTER OF KENYA REVENUE AUTHORITY’S TAX DEMAND

OF KSHS 20,000,000 DATED 11/12/2022 AGAINST THE EXPARTE
APPLICANT

REPUBLIC……………………………………………….…………APPLICANT
VERSUS
KENYA REVENUE AUTHORITY…………………..……...…RESPONDENT
AND
PETER OKECH DOLA….……………….…………..EXPARTE APPLICANT

ASSIGNMENT: Find the Commissioner of Lands v Kunste Hotel

Limited judgment from www.kenyalaw.org and read it.

1
Kenya was colonized by Britain from 1920 to 1963
LESSON 2: LEGAL BASES OF JUDICIAL REVIEW

Introduction

As discussed in the previous class, the High of Kenya has inherent jurisdiction to
carry out judicial review. Therefore, it is not necessary that there should be any legal
bases or foundations of judicial review before the High Court can invoke its mandate
of judicial review. In Kenya, however, we have a number of legal bases or
foundations which recognize judicial review.

Legal Bases of Judicial Review in Kenya

In Kenya, the main legal bases of judicial review are:

a). Constitutional

Under the Constitution of Kenya, 2010, the bases of judicial review include:

● Article 10

National values and principles of governance including rule of law, accountability,

and human rights.

● Article 23(3)(d)

While hearing and determining a human rights petition, the High Court may grant
appropriate reliefs including an order of judicial review.

● Article 47(3)(a)

Parliament shall enact legislation to give effect to the right to fair administrative
action and for the review of administrative action by a court or, if a appropriate, an
independent and impartial tribunal.

● Article 165(6).

The High Court has supervisory jurisdiction over the subordinate courts and over
any person, body or authority exercising a judicial or quasi-judicial function.
 ● Article 165(7).

In exercising its said supervisory jurisdiction, the High Court may call for the record
of any proceedings before any subordinate court or person, body or authority, and
make any order or give any direction it considers appropriate to ensure the fair
administration of justice.

b). Statutory

The substance of judicial review in Kenya is governed by the:

● Law Reform Act, 2 especially Sections 7 and 8 which, for example,

provide that appeals from the High Court lies at the Court of Appeal.

● Fair Administrative Action Act, 2015, especially Part III of the Act
which wholly deals with judicial review including providing for
grounds of judicial review, requirement of exhaustion of available
alternative remedies and 90-day deadline for hearing and determining
judicial review cases.

c). Subsidiary Legislation

The procedure for applying for judicial review in Kenya is provided for under Order
53 of the Civil Procedure Rules, 2010. These rules were made by the Rules
Committee under Section 81 of the Civil Procedure Act Cap 21 of the Laws of
Kenya.

However, Section 10(2) of the Fair Administrative Action Act, 2015 provides that
the Chief Justice may make rules of practice for regulating the procedure and
practice relating to judicial review of administrative action. As at December 2022,
draft rules were circulated to stakeholders for their comments before they could be
finalized and published in the Kenya Gazette.

Further, Section 13 of the Fair Administrative Action Act, 2015 provides that the
Cabinet Secretary responsible for matters relating to administration of justice may,
in consultation with the Commission on Administrative Justice, make Regulations

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Cap 26 of the Laws of Kenya
for the better carrying out of the provisions of the Act but such Regulations shall be
approved by Parliament before they are published in the Kenya Gazette.

d). Case Law

Kenyan courts have also progressively developed the law on judicial review
including by clarifying its inherent nature and legal bases. For example, it is now
established by case law that there are two tracks of judicial review which an
applicant can choose from:

i. Common law, as guided by Order 53 of the Civil Procedure Rules and Law
Reform Act.

ii. Constitutional and Statutory, as guided by Article 23 (3) (d) and Article 47
of the Constitution and the Fair Administrative Action Act, 2015.

NB: For a detailed understanding of the expanded scope of judicial review in Kenya’s post-2010 legal
landscape, read Mohammed Sheria & 2 others v Simon Kipkorir Sang & 5 others [2018] eKLR

LESSON 3: DISTINCTION OF JUDICIAL REVIEW FROM ORDINARY

REVIEW AND APPEAL

ORDINARY REVIEW VERSUS JUDICIAL REVIEW

Ordinary review refers to a mechanism in civil litigation in which a court of law re-
looks its own judgment or order.

In Kenya, ordinary review is provided for under Section 80 of the Civil Procedure
Act3 and Order 45 of the Civil Procedure Rules, 2010. Under it, any person
considering himself aggrieved by a decree (from a judgment) or an order (from a
ruling) from which an appeal is allowed but from which no appeal has been lodged,
or a person who feels aggrieved by a decree or order from which no appeal is allowed
may apply for review before the court that made the order or decree on the following
conditions:

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Cap 21 of the Laws of Kenya
 a) On the discovery of new and important matter or evidence which after the
exercise of due diligence was not within his knowledge or could not be
produced by him at the time the decree or order was made;

b) On a count of some mistake or error apparent on the face of the record; for
example error of law, typographical errors, mathematical errors etc.

c) For any other sufficient reason.

In the above three circumstances, an aggrieved person may apply to the court which
made the decree or order. There are certain exceptions to the requirement that
application for review be made to the court that made the decree or order, namely:

a) Where the Chief Justice orders some other person, i.e. some other judge or
magistrate to hear the application for review

b) Where the Judge or Magistrate who made the decree or the order is no longer
attached to that court e.g. where they have been transferred or have resigned
or are deceased.

c) Where the Magistrate or Judge who made the order or decree has been absent
from the station for more than three months from the date of filing of
application for review.

d) Where the applicant for review has discovered new and important matter of
evidence.

There is no time limitation for application for ordinary review but it must be brought
without unnecessary delay.

Upon ordinary review, there may be a re-hearing of a case. The case may be heard
afresh.

However, no double review is allowed (see Order 45 rule 6 of the Civil Procedure
Rules, 2010). This means that no application can be brought for review of an order
issued upon an application for ordinary review.

Thus, ordinary review and judicial review are different because:

 a) With judicial review an aggrieved party must first of all apply for and obtain
leave of court, especially when the applicant uses the common law-procedure
for judicial review (see Order 53 rule 1(1) of the Civil Procedure Rules,
2010). On the other hand, there is no requirement for obtaining leave before
filing an application for ordinary review.

b) With judicial review, especially where an applicant seeks the order of

certiorari, the application must be brought within six (6) months i.e. there is
time limitation of six months (see Order 53 rule 2 of the Civil Procedure
Rules, 2010). On the other hand, with ordinary review, there is no time
limitation but the application must be brought without unnecessary delay.
c) The grounds for judicial review are not the same as those for ordinary review.
The grounds for judicial review are generally the administrative law principles
while the grounds for ordinary review are set out under Section 80 of the Civil
Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, 2010.

APPEAL VERSUS JUDICIAL REVIEW

An appeal has been described as the transfer or taking of a case from a lower court
to a higher court in the hope of reversing or modifying the decision of the lower
court. An appeal involves taking a case to a higher court for rehearing to determine
whether the decision arrived at by the lower court was right or wrong.

When one appeals a decision, the appellant claims that the subject decision is wrong
or incorrect on the basis of evidence tendered and the applicable law and that the
appellate body should reverse the decision. Therefore, on appeal, the appellant
questions the merits of the decision of the lower court.

For example, if a lower court finds that X defamed Y, X might appeal that finding
or the amount of damages which the court awarded to Y. The appellate court, if
persuaded of the merits of the case, may allow X’s appeal in which case the appellate
court substitutes the decision of the lower court with the decision of the appellate
court.

On the other hand, in judicial review, a court is not concerned with the merits of the
case, that is, the rightness or wrongness of the decision in question. Thus, a judicial
review court is not concerned with whether the decision was right or wrong on the
basis of the evidence tendered and the applicable law. Instead, in judicial review, the
court is concerned with whether the decision-making process was lawful or
unlawful.
Indeed, in Republic v Attorney General & 4 others Exparte Kenneth Kariuki Githii
[2014] eKLR, the court observed that: “...judicial review proceedings are not
concerned with the merits but with the decision making process…In other words
judicial review only determines whether the decision makers had the jurisdiction,
whether the persons affected by the decision were heard before it was made and
whether in making the decision the decision maker took into account relevant
matters or did take into account irrelevant matters.”

With appeals, if there is a right of appeal and an appeal succeeds, the appellate court
will substitute its own decision for that of the inferior tribunal and dispose of the
case accordingly. However, in Chief Constable of North Wales Police v Evans
[1982] 1 WLR 1155, the court stated, in an effort to distinguish judicial review from
an appeal, that the purpose of judicial review is to ensure that an individual is given
fair treatment by a wide range of administrative authorities be they judicial, quasi-
judicial or purely administrative.

It is not part of that purpose to substitute the opinion of the judiciary or the individual
judges for that of the authority constituted by law to decide the matter in question.
The consequences of finding that a decision was unlawful, and the consequences of
finding that the decision making process was unlawful, improper or flawed is that it
is invalidated. This means that in judicial review, the court can order a decision to
be made again but the second time, it must be made in accordance with the law.

However, it should be noted that it would be acceptable for the decision maker
(whose first decision was invalidated by a judicial review court) to come to the same
conclusion provided the law is respected. The point is that, even if the law was not
followed in the first place, the court can order that body to reconsider the matter.

In Mirugi Kariuki v Attorney General [1992] eKLR, the Appellant was charged
with the offence of treason. He petitioned the Attorney General to grant leave to an
English Barrister to lead his defence in Kenya. In the exercise of his absolute
discretion to consider such a request conferred by Section 11 of the Advocates Act,
the Attorney General wrote a letter to the Appellant saying that leave would not be
granted because the Appellant’s trial was straight forward and would not require the
assistance of a foreign advocate. In an application for Certiorari to quash the
Attorney General’s decision, the court found that the grounds on which the Attorney
General’s decision was founded were suspicious. The Court removed the offending
letter to the High Court, quashed it and directed the Attorney General to reconsider
Mr. Kariuki’s request in a manner more respectful to the norms of sound
administration.

Another attribute of appeal is that it is granted by statute (see, for example, Sections
65-79G of the Civil Procedure Act and Order 42 of the Civil Procedure Rules,
2010). For example, under the Civil Procedure Rules, there are some orders against
which one cannot appeal unless they first obtain leave or permission of the court,
meaning that one cannot appeal as of right in those cases. Therefore, unless a statute
expressly allows an appeal, an aggrieved party cannot lodge an appeal against a
decision. In cases where appeals are allowed against administrative decisions or
actions, the relevant law will expressly state that appeal is allowed.

On the other hand, in judicial review, the court exercises an inherent power which
gives it authority to review unlawful decisions. In other words, there need not be
express statutory provisions authorising the High Court to exercise judicial review
over an administrative decision, or an administrative action. However, even if a
statute specifically excludes appeal to a higher court, this does not bar the High Court
from exercising powers of judicial review.

LESSON 4: CONSTITUTIONAL AND STATUTORY GROUNDS OF

JUDICIAL REVIEW

Introduction

Grounds of judicial review simply refer to the administrative law principles,

substantive or procedural, which an aggrieved person can rely on to challenge an
administrative action through judicial review.

Constitutional Grounds of Judicial Review in Kenya

Section 47(1) of the Constitution of Kenya provides for the right to fair
administrative action. It provides that a fair administrative action should be:

1. Expeditious
2. Efficient
3. Lawful
4. Reasonable
5. Procedurally fair
Further, Article 47(2) of the Constitution provides that a person is entitled to written
reasons whenever an administrative action will affect their right or fundamental
freedom.

Moreover, an aggrieved person can rely on the national values and principles of
governance under Article 10(2) of the Constitution as constitutional grounds of
judicial review. They include:

1. Rule of law
2. Inclusiveness
3. Equality
4. Human rights
5. Good governance
6. Integrity
7. Transparency
8. Accountability
9. Sustainable development

Further, Article 232 of the Constitution provides for the principles and values of the
public service. They include:

1. Professional ethics
2. Efficient, prompt, impartial and equitable provision of service
3. Accountability for administrative acts
4. Transparency
5. Provision or timely and accurate information to the public

Statutory Grounds of Judicial Review in Kenya

The main substantive statute on judicial review in Kenya is the Fair Administrative
Action Act (FAAA), 2015. The FAAA gives effect to Article 47 of the Constitution.
However, the Public Service (Values and Principles) Act is also a useful statute since
it gives effect to Article 232 of the Constitution.

The FAAA, 2015 provides for the following grounds for judicial review:

Section 6: failure to provide reasons for an administrative action.

Section 7 (2): judicial review may rise in cases of:

 a) Lack of legal authority
b) Exceeding jurisdiction/power conferred by law
c) Acting pursuant to unauthorized delegated power
d) Bias or reasonable suspicion of bias
e) Denial of an opportunity to state one’s case
f) Failure to comply with a mandatory or material procedure or condition
g) Procedural unfairness
h) Error of law
i) Ulterior motive or purpose
j) Failing to take into account relevant considerations
k) Acting pursuant to directions of a person not authorized by any written law to
give such directions
l) Bad faith
m) Where an action is not rationally connected to: the purpose for which it was
taken; the purpose of the empowering provision; the information before the
administrator; or the reasons given for it by the administrator
n) Abuse of discretion
o) Unreasonable delay or failure to discharge a duty imposed by law
p) Unreasonableness
q) Lack of proportionality
r) Breach of legitimate expectations
s) Unfairness
t) Abuse of power

NO. 4 of 2015
Fair Administrative Action
NB: For further insights on this topis, read:

1. Katiba Institute’s 2018 book, Fair Administrative Action under Article 47

of the Constitution: A Guide for the Administrator with some guidance to
the public on what to expect and how to complaint, Available at:
https://katibainstitute.org/wp-content/uploads/2022/01/Fair-Administrative-
Action-Book-1.pdf

2. Seth Wekesa and Nelson Otieno, The duty to give reasons under Kenya’s
Fair Administrative Action Act, 2015: Seven years later, Available at:
https://journals.kabarak.ac.ke/index.php/kjle/article/view/195/188
LESSON 5: COMMON LAW GROUNDS OF JUDICIAL REVIEW IN
KENYA

Introduction

Common law generally refers to judge-made law. In this regard, judicial review has
benefited greatly from the pronouncements of courts of law when they are hearing
and determining administrative law-related disputes including judicial review. In
fact, courts of law have been instrumental in creating new, or clarifying old, grounds
of judicial review.

Common law grounds of Judicial Review in Kenya

The common law grounds of judicial review generally cover the circumstances
under which an administrative body may be said to have abused its powers. They
are linked to the administrative law principles, substantive or procedural.

Previously, the doctrine of ultra vires was the main ground of judicial review.
However, courts of law have continued to expand the grounds of judicial review to
include:

a) Illegality/unlawfulness/error of law

b) Lack of jurisdiction/jurisdiction error

c) Improper exercise of discretion

d) Lack of objectivity (ignoring relevant factors or considering irrelevant factors

or error of fact)
e) Unreasonableness/irrationality

f) Breach of legitimate expectation

g) Bad faith

h) Breach of the rules of natural justice

i) Lack of proportionality

j) Procedural impropriety
 k) Violation of fundamental rights and freedoms e.g. Right to Fair
Administrative under Article 47(1) of the Constitution of Kenya, 2010

Sample of Kenyan Case Law on Grounds of Judicial Review

There is a rich body of case law, abroad and in Kenya, which has shaped the law on
the grounds of judicial review. They include:

First, in Re Hardial Singh and Others [1979] KLR 18; [1976-80] 1 KLR 1090, the
Court expressed itself as follows: “The court can therefore interfere with the
decision of a Minister if the Minister does not act in good faith, or if he acts on
extraneous considerations which ought not to influence him, or if he plainly
misdirects himself in fact or in law…….........Orders made must comply with the Act,
and if they do not so comply in important aspects, they will be null and void…….The
courts would be no rubber stamp of the executive and if Parliament gives great
powers to the Minister, the courts must allow them to him: but, at the same time,
they must be vigilant to see that he exercises them in accordance with the law. He
must act within his lawful authority……..An act, whether it be of a judicial, quasi-
judicial or administrative nature, is subject to the review of the courts on certain
grounds. The Minister must act in good faith; extraneous considerations ought not
influence him; and he must not misdirect himself in fact or law….”

Therefore, the court in the Re Hardial Singh and Others case noted the following
grounds of judicial review:

● Not acting in good faith

● Acting on extraneous considerations

● Misdirecting oneself in fact or in law

● Non-compliance with Acts of Parliament

Second, in Republic v Institute of Certified Public Accountants of Kenya Exparte

Vipichandra Bhatt T/A J V Bhatt & Company Nairobi HC Misc. App. No. 285 of
2006, the Court held: “Error of law by a public body is a good ground for judicial
review. An administrative or executive authority entrusted with the exercise of a
discretion must direct itself properly in law……. It is axiomatic that statutory power
can only be exercised validly if they are exercised reasonably. No statute can ever
allow anyone on whom it confers a power to exercise such power arbitrarily and
capriciously or in bad faith.”

Therefore, the court in the said Exparte Vipichandra Bhatt T/A J V Bhatt &
Company case noted the following grounds of judicial review:

● Error of law

● Exercising discretion contrary to law

● Exercising power unreasonably

● Exercising power arbitrarily and capriciously

● Exercising power in bad faith

Third, in Patrick Kariungi v Commissioner of Police & another [2014] eKLR,

Odunga, J (as he then was) aptly noted: “…like the Biblical mustard seed which a
man took and sowed in his field and which is the smallest of all seeds but when it
grew up it became the biggest shrub of all and became a tree so that the birds of the
air came and sheltered in its branches, judicial review stems from the doctrine of
ultra vires and the rules of natural justice and has grown to become a legal tree with
branches in illegality, irrationality, impropriety of procedure (the three “I’s”) and
has become the most powerful enforcer of constitutionalism, one of the greatest
promoters of the rule of law and perhaps one of the most powerful tools against
abuse of power and arbitrariness.”

Therefore, the court in the Patrick Kariungi case noted the following grounds of
judicial review.

● Ultra vires

● Natural justice

● Illegality

● Irrationality

● Impropriety of procedure
Fourth, in Central Organisation of Trade Unions (K) v Cabinet Secretary, Ministry
of Labour & Social Services & 2 others [2014]eKLR Odunga, J (as he then was)
noted: “Where Parliament clearly vests the exercise of discretion on a person or
authority it would be wrong in the Court’s view to intervene in the merits of the
decision. The Court can however intervene in the following situations: (1) where
there is an abuse of discretion; (2) where the decision-maker exercises discretion
for an improper purpose; (3) where the decision-maker is in breach of the duty to
act fairly; (4) where the decision-maker has failed to exercise statutory discretion
reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose
of the Act donating the power; (6) where the decision-maker fetters the discretion
given; (7) where the decision-maker fails to exercise discretion; (8) where the
decision-maker is irrational and unreasonable.”

Therefore, the court in the Central Organisation of Trade Unions (K) case noted
the following grounds of judicial review:

● Abuse of discretion

● Exercising discretion for an improper purpose

● Breach of duty to act fairly

● Failure to exercise statutory discretion reasonably

● Acting in a manner that frustrates the purpose of the power-donating Act of

Parliament
● Fettering your discretion

● Failure to exercise discretion

● Irrationality and unreasonableness

LESSON 6: PROCEDURE OF APPLYING FOR JUDICIAL REVIEW

Currently, it can be argued that there are three (3) avenues for applying for judicial review in
Kenya in Kenya. These are:
 a) Under Article 47(1) of the Constitution of Kenya, 2010 in respect of the right to fair
administrative action.
b) Under the Fair Administrative Action Act, 2015
c) Under Order 53 of the Civil Procedure Rules, 2010 or simply under the common law

A. PROCEDURE UNDER THE CONSTITUTION OF KENYA, 2010

Article 47(1) of the Constitution of Kenya, 2010 enshrines the right to fair administrative action
(lawful, reasonable, expeditious, efficient and procedurally fair). This right falls within Chapter
4 (Bill of Rights).

Article 22 (1) of the Constitution provides that every person has the right to institute court
proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied,
violated or infringed, or is threatened.

Article 22 (3) of the Constitution provides that the Chief Justice shall makes rules providing for
the court proceedings under Article 22. In this regard, proceedings for enforcement of human rights
are usually instituted at the High Court through a petition accompanied by a supporting affidavit
(with relevant annexures as documentary evidence).

The applicant in a human rights petition is known as the petitioner. The applicant does not need
to have been a victim of violation of human rights since a petition may be brought on behalf of the
victim as justified by the prevailing circumstances. The alleged violator of human rights is known
as a respondent. Other persons who may be interested in the case may join the case, with leave of
the court, as interested parties or friends of the court (amicus curiae).

The respondents and interested parties will respond to the petition through a replying affidavit or
grounds of opposition. The petitioner may file a further affidavit if need be to respond to any
new matters raised in the respondent’s replying affidavit.

Petitions are usually heard and determined through documents only, meaning that physical
witnesses are rarely allowed to testify. Once all parties have filed their documents, the court will
direct the parties to file their written submissions ahead of delivery of judgment. The judgment
may find that the petition has or lacks merit. This will imply that the sought judicial review
remedies may or may not be granted.

According to Article 23 (3) (d) of the Constitution, a court handling proceedings under Article 22
of the Constitution may grant appropriate relief including an order of judicial review. However,
seeking judicial review remedies through a constitutional petition should guard against the
principles of constitutional avoidance (temptation to unnecessarily convert every legal dispute as
a constitutional matter) and exhaustion of alternative remedies (rushing to the constitutional
court before exhausting other available lawful remedies).

B. PROCEDURE UNDER THE FAIR ADMINISTRATIVE ACTION ACT

Section 8 of the Fair Administrative Action Act, 2015 provides that an application for judicial
review shall be heard and determined within 90 days of its filing.

Section 9 of the Fair Administrative Action Act, 2015 does not have any limitation period for
filing judicial review applications. However, it provides that an application for judicial review
should be filed without unreasonable delay.

Section 10(1) of the Fair Administrative Action Act, 2015 provides that an application for judicial
review shall be heard and determined without undue regard to procedural technicalities. This
borrows from Article 159(2) (d) of the Constitution, which provides that justice should not be
administered without undue regard to procedural technicalities.

Further, Section 9(2)(3)(4) of the Fair Administrative Action Act, 2015 contemplates that a person
aggrieved by an administrative action should first (except in exceptional circumstances) exhaust
ALL other lawful remedies available to him (e.g. internal review or appeal within the body that
made the offending decision or through the ombudsman) before seeking judicial review.

Section 10 of the Fair Administrative Action Act, 2015 empowers the Chief Justice to make rules
to regulate the procedure for applying for judicial review. As at early 2024, a team constituted by
the Chief Justice Martha Koome had made draft Fair Administrative Action Rules which were
awaiting formal adoption and gazettment. These draft rules proposed the same two-stage process
(leave and main stage) of applying for judicial review as in the Civil Procedure Rules, 2010.

C. PROCEDURE UNDER THE CIVIL PROCEDURE RULES, 2010 OR COMMON LAW

Under Order 53 of the Civil Procedure Rules, 2010, the procedure of applying for judicial review
is divided into two stages:

a) Leave stage
b) Main application

I). LEAVE STAGE

Leave to institute judicial review is a mandatory stage.4 The High Court mainly uses the leave
stage as a sieving mechanism. Leave stage helps in weeding out frivolous applications for judicial
review. For example, to apply for judicial review (at both leave and main application stages), a
person must demonstrate locus standi, that is, capacity to sue.

Previously, a restrictive test was used, that is, one had to be an aggrieved party. This meant that
you should have been directly affected by the decision or action in question. However, this
restrictive test was abandoned and today one just needs to show that they have a sufficient interest
in the matter under review. If you do not have sufficient interest in the matter, the court will not
grant you any of the orders. Further, public-spirited persons (those who seek to defend public

4
Order 53 Rule 1
interest such as Okiya Omtata) have been deemed to have locus standi. The objective of the
requirement of locus standi is to lock out busy bodies or unmerited litigants.

In terms of the limitation period for seeking a certiorari, a person is required lodge his judicial
review application within six (6) months from the date the offending action arose.5 Time limitation
is not stipulated for Mandamus or Prohibition but it is required that you file the application within
a reasonable time.

An application for leave is made to a judge in chambers, and the person whose decision or action
is being challenged does not participate at the leave stage since the application for leave is made
exparte (only the applicant is heard by the court).6 The application for leave is made through the
following documents:

a) Chambers Summons and Supporting Affidavit. Any documentary evidence will be

annexed to the Supporting Affidavit.
b) Statement. This contains the description of the applicant, reliefs sought, and the grounds
of judicial review.
c) Verifying Affidavit. This verifies the facts relied on. 7

During the hearing of the application for leave, the judge will not dwell too much on the merits of
the application. Instead, the judge will only determine if the application raises an arguable and
prima facie (on the face of it) case with a probability of success.

If the applicant is granted leave, then that leave may operate as a stay of the offending decision or
action that is the subject of the application for judicial review until the determination of the
application or until the judge directs otherwise. 8 Stay only applies to an application for certiorari
and prohibition, not mandamus. 9 However, whether leave will operate as stay will depend on the
discretion of the judge.10 The judge may choose to hear the question of leave and stay separately, 11
but case law has established that leave and stay must be heard by the same judge.

If the application for leave is successful, then the applicant will extract the order of the High Court
(including whether leave will operate as stay). This will be with a view to serving the order upon
the person whose decision or action is the subject of the judicial review proceedings.

5
Order 53 Rule 2

6
Order 53 Rule 1(2)

7
Ibid

8
Order 53 Rule 4

9
Ibid

10
Ibid

11
Ibid
An example of the title of an application for leave is:

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
MISCELLANEOUS APPLICATION NO…………………………OF 2013
REPUBLIC…………………………………………………………………….…..APPLICANT
VERSUS
KENYA REVENUE AUTHORITY...................................................................RESPONDENT
FUJI MOTORS E.A. LIMITED……………………………………EXPARTE APPPLICANT

IN THE MATTER OF AN APPLICATION BY FUJI MOTORS E.A. FOR LEAVE TO

APPLY JUDICIAL REVIEW
AND
IN THE MATTER OF THE KENYA REVENUE AUTHORITY ACT, 1995

II). MAIN APPLICATION

After extracting the order made by the court at the leave stage, the applicant will prepare the main
application for judicial review in the form of Notice of Motion accompanied by a Supporting
Affidavit.12 The Notice of Motion must be filed in the High Court within 21 days of the grant of
leave. 13

The Notice of Motion should then be served upon the Respondent and all persons who are directly
affected by the application.14 Copies of all the documents relied on during the leave stage such as
the Statement and affidavits will also be served on the Respondent. 15 Service of the Notice of
Motion must be done at least eight clears days before the hearing date.16 The applicant must
prepare and file in court an affidavit of service describing how the application for judicial review
was served, or not served, upon persons who should have been served. 17 The High Court may
adjourn the hearing of the Notice of Motion if it is of the opinion that service was improper or
incomplete.18

12
Order 53 Rule 3(1)

13
Ibid

14
Order 53 Rule 3(2)

15
Order53 Rule 4

16
Supra note 12

17
Order 53 Rule 3(3)

18
Order 53 Rule 3(4)
The Statement cannot be amended unless with leave of the court.19 This is considering that grounds
or relief not contained in the Statement cannot be relied on during the hearing. 20

The Respondent will respond to the application for judicial review by preparing and filing in the
High Court a Replying Affidavit on which any documentary evidence may be annexed. The High
Court may allow the parties to swear further affidavits to respond to new matters arising from their
respective affidavits. 21 Parties are advised to exchange among themselves copies of affidavits that
they intend to use at the hearing.22

On the hearing date of the application, the applicant has the right to begin presentation of his case. 23
He will be followed by the Respondent and then any other party. The hearing takes place in open
court. The hearing is usually through highlighting the documents filed by the applicant, respondent
and any other party. Oral testimony, such as through witnesses, is very rare. If you have any
witnesses, ask them to swear and file affidavits containing their testimony. This is because, in
practice, judicial review applications are heard through filing/exchanging written submissions.

At the end of the hearing, the High Court will deliver a judgment either allowing or dismissing the
application for judicial review. Any party aggrieved by the judgment (or denial of leave) has a
right to appeal to the Court of Appeal. 24

An example of the title of a main application for judicial review is:

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
JUDICIAL REVIEW APPLICATION NO…………………………OF 2013
REPUBLIC………………………………………………………………….……..APPLICANT
VERSUS
KENYA REVENUE AUTHORITY...................................................................RESPONDENT
FUJI MOTORS E.A. LIMITED………………….……………………..………...... EXPARTE

IN THE MATTER OF AN APPLICATION BY FUJI MOTORS E.A. FOR JUDICIAL

REVIEW
AND
IN THE MATTER OF THE KENYA REVENUE AUTHORITY ACT, 1995

19
Order 53 Rule 4(2)

20
Order 53 Rule 4(1)

21
Supra note 19

22
Order 53 Rule 4(3)

23
Order 53 Rule 5

24
Section 8(5) of Law Reform Act, and Section 9(5) of the Fair Administrative Action Act, 2015
CONCLUSION

Do we now have two systems of judicial review, one with special rules and one based just on the
FAAA? Unfortunately, the situation is somewhat confused. Applications for an order of certiorari
are still being brought and refused because more than six months has elapsed. However, since
there is no leave requirement under the FAAA or its Rules, lawyers should avoid this issue by
suing under FAAA and not the common law. However, the FAAA does not have enabling
regulations as of April 2024.

In Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016]
eKLR, the Court of Appeal noted that: In this regard, there are no two systems of law regulating
administrative action - the common law and the Constitution - but only one system grounded in
the Constitution. The courts' power to statutorily review administrative action no longer flows
directly from the common law, but inter alia from the constitutionally mandated Fair
Administrative Action Act and Article 47 of the Constitution.

LESSON 7: JUDICIAL REVIEW REMEDIES IN KENYA – TRADITIONAL

REMEDIES

Before the enactment of the Fair Administrative Action Act, 2015, there were only
three (3) main remedies (or prerogative orders), which the High Court of Kenya
could grant in respect of an application for judicial review. These were:

● Certiorari
● Prohibition and
● Mandamus

However, whether High Courts will grant these remedies depends on the
circumstances of each case as these remedies are discretionary. Indeed, in Republic
v Judicial Service Commission exparte Pareno [2004] 1 KLR 203-209 it was held
that: “…judicial review orders are discretionary and are not guaranteed and hence
a court may refuse to grant them even where the requisite grounds exist since the
Court has to weigh one thing against another and see whether or not the remedy is
the most efficacious in the circumstances obtaining and since the discretion of the
court is a judicial one, it must be exercised on the evidence of sound legal principles.
The court does not issue orders in vain even where it has jurisdiction to issue the
prayed orders. Since the court exercises a discretionary jurisdiction in granting
judicial review orders, it can withhold the gravity of the order where among other
reasons there has been delay and where the public body has done all that it can be
expected to do to fulfil its duty or where the remedy is not necessary or where its
path is strewn with blockage or where it would cause administrative chaos and
public inconvenience or where the object for which application is made has already
been realised...”

A). CERTIORARI

The word Certiorari is a Latin word which simply means ‘to be informed’.
Historically, it was a royal command or demand for information. The practice was
that the sovereign, who was the King or the Queen, upon receiving a petition from a
subject complaining of some injustice done to him, would state that he wishes to be
certified of the matter and then he would order the matter to be brought up to him.
Ordering the matter to be brought up to him would include ordering that the records
of the proceedings be brought up to the sovereign. The purpose of calling up the
records was in order for the sovereign to quash any decision that had been made after
acquainting himself of the matter or being certified of the matter.

In Kenya, certiorari is an order to remove proceedings from an administrative body

or an inferior court to the High Court in order to be investigated and if found wanting
(on any one of the grounds of judicial review such as ultra vires) be quashed. The
order can issue against administrative tribunals, inferior courts, local authorities,
Ministers of Government, administrative bodies, and miscellaneous public bodies
exercising public functions.

For example, in Majid Cockar v Director of Pensions Nai H.C. Misc App 532 of
1998, the Pensions Department made a mistake in their calculations in computing
the pension payable to former Chief Justice Cockar. So, the former Chief Justice
applied for Judicial Review, and the High Court issued the order of certiorari to
quash the decision awarding the former CJ an erroneous sum as his pension.

When one applies for the order of Certiorari, one is seeking to quash a decision that
has already been made. At the time of application for judicial review, the order you
seek the court to quash must be presented to the court by making a photocopy of the
order and attaching it to the application, or explaining the failure to attach it. 25

25
Order 53 Rule 7(1)
Further, an application for the remedy of certiorari under common law must be
brought within six months of the impugned administrative action. 26

B). PROHIBITION

The order of Prohibition is an order issued by the High Court which prohibits
administrative bodies from doing something that contravenes any of the grounds of
judicial review. It will also prohibit a body from continuing to carry out decisions
wrongly or wrongfully made. This order may be issued against judicial body acting
in an administrative capacity. It can also issue against an administrative body
performing administrative duties or against the government officials, etc. It can be
issued to stop a public body from continuing proceedings that are ultra vires. It can
also be issued to stop an administrative body from continuing to do something in
excess of jurisdiction. It can also be used to stop an administrative body from
abusing its powers.

In R v Electricity Commissioners Exparte Electricity Joint Committee (1924) 1

K.B 171 at Page 559 Lord Denning stated as follows: “It [Prohibition] is available
to prohibit administrative authorities from exceeding their powers or misusing
them.” Lord Atkin, in the same case, said as follows: “If proceedings establish that
the body complained of exceeded its jurisdiction, by entertaining matters which
would result in its final decision being subject to being brought up and quashed on
certiorari, I think that Prohibition will lie to restrain it from exceeding its
jurisdiction.”

This illustrates the point that prohibition will lie to restrain an administrative body
from doing something wrongly or misusing its power, abuse of power, etc. With
Prohibition, you do not have to attach the copy of the order that you are aggrieved
with since it may not have been made yet.

C). MANDAMUS

The order of Mandamus is derived from the Latin word ‘Mandare’, meaning ‘to
command.’ It is a court order issued to compel the performance of a public duty
where a public body or official has unlawfully refused, declined or otherwise failed
to undertake the duty.

26
Order 53 Rule 2
However, as was held by Justice Odunga in Patrick Kariungi v Commissioner of
Police & another [2014] eKLR, the Court cannot by an order of mandamus compel
the taking of an illegal act since mandamus only compels the taking of an action
which the Respondent is legally bound to perform.

Mandamus issues where there is a duty imposed by statute or common law.

However, the duty must be a public duty. Therefore, Mandamus will not issue in
respect of a duty that is of a private nature even if the body in question is a public
body. For example, two construction companies may agree to undertake some work
and to resolve any dispute between them by arbitration through the Industrial Court.
In such a case, the Industrial Court will be performing a private function, and thus
the order of Mandamus cannot issue against it.

For Mandamus to issue, the applicant must have made a request for the performance
of a public duty which has been refused, declined or ignored. This means that if a
public administrative body refused to do something, you must approach it and
request it to perform the function before seeking the assistance of the judicial review
court.

Unreasonable delay on the part of the public body will be treated as refusal. The
duty must be a specific duty. You cannot apply for the order of Mandamus for a
duty that is general.

For example, under the English Gas case (1972), it was the duty of the British Gas
Corporation to develop an efficient, coordinated and economical system of gas
supply for Great Britain. Such an obligation was held to be so imprecise. It was so
general that it would not be enforceable by the order of Mandamus.

However, the lack of specificity of a duty does not mean that it is meaningless. This
is because a duty can be carried out though it is not precise. Therefore, it should be
noted that Mandamus is used to enforce performance of specific duties and not the
exercise of mere powers.

In Central Organization of Trade Unions (K) v Cabinet Secretary, Ministry of

Labour Social Security & Services & 2 others [2014] eKLR,27 an order of
mandamus was issued to compel the Labour Cabinet Secretary to appoint and gazette
the name of a nominee of COTU to the National Social Security Fund (NSSF) board

27
Nairobi High Court Miscellaneous Application No 21 of 2014
of trustees, as per his statutory duty. Section 6 of the NSSF Act mandated the
Cabinet Secretary responsible for labour to appoint to the board the nominee of “the
most representative workers organization.” The court established that the Cabinet
Secretary had unnecessarily failed or refused for about five months to make the said
appointment despite several requests and reminders by COTU and its advocates. In
that case, Justice Odunga relied on the case of Republic v Kenya National
Examinations Council exparte Geoffrey Gathinji Njoroge & Others Civil Appeal
No. 266 of 1996 where it was held inter alia as follows: “The order of mandamus is
of a most extensive remedial nature, and is, in form, a command issuing from the
High Court of Justice, directed to any person, corporation or inferior tribunal,
requiring him or them to do some particular thing therein specified which appertains
to his or their office and is in the nature of a public duty. Its purpose is to remedy
the defects of justice and accordingly it will issue, to the end that justice may be
done, in all cases where there is a specific legal right or no specific legal remedy for
enforcing that right; and it may issue in cases where, although there is an alternative
legal remedy, yet that mode of redress is less convenient, beneficial and effectual.
The order must command no more than the party against whom the application is
legally bound to perform. Where a general duty is imposed, a mandamus cannot
require it to be done at once. Where a statute, which imposes a duty, leaves
discretion as to the mode of performing the duty in the hands of the party on whom
the obligation is laid, a mandamus cannot command the duty in question to be
carried out in a specific way......These principles mean that an order of 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. An order of mandamus compels the performance of a duty imposed by
statute where the person or body on whom the duty is imposed fails or refuses to
perform the same but if the complaint is that the duty has been wrongfully performed
i.e. that the duty has not been performed according to the law, then mandamus is
wrong remedy to apply for because, like an order of prohibition, an order of
mandamus cannot quash what has already been done........Only an order of
certiorari can quash a decision already made and an order of certiorari will issue
if the decision is without jurisdiction or in excess of jurisdiction, or where the rules
of natural justice are not complied with or for such like reasons.”

In Kenya National Examination Council v R exparte Geoffrey Gathinji Njoroge

& others Civil Appeal No. 266 of 1996, Justices of Appeal Tunoi and Shah stated
as follows regarding the powers of the Kenya National Examination Council: “The
times and frequency of the examinations are left to the discretion of the Council and
it cannot be enforced by Mandamus to hold an examination at any particular time of
the year.

Further, in Daniel Nyongesa & Others V. Egerton University College Civil Appeal
NO. 90 of 1989, Nyongesa’s exam results were withheld by Egerton University.
Nyongesa requested for his results from the said university, but it refused to release
the results. Therefore, he applied for an order of mandamus. The court issued an
order of mandamus for the University to release the results. There was a specific
duty imposed upon the University, that is, to release the results.

LESSON 8: JUDICIAL REVIEW REMEDIES IN KENYA – EMERGING

REMEDIES

Before the enactment of the Fair Administrative Action Act, 2015, there were only
three (3) traditional remedies (or prerogative orders) that the High Court of Kenya
could grant in respect of an application for judicial review, namely: Certiorari;
Prohibition; and Mandamus.

However, Section 11 of the Fair Administrative Action Act, 2015 has gone beyond
the traditional remedies of certiorari, prohibition and mandamus. It provides that a
judicial review court may grant the following orders:

a) Declaring the rights of the parties in respect of the administrative action in

issue (declaration).

According to the Black’s Law Dictionary, declaration of rights is an action in

which a litigant requests a court’s assistance not because any rights have been
violated but because those rights are uncertain. In administrative law, the main
purpose of a declaratory order is to clarify the status of the legal rights of the
person aggrieved by an administrative action. For example, in Bitange Ndemo
v Director of Public Prosecutions & 4 others [2016] eKLR, the High Court
of Kenya at Nairobi, while determining a judicial review case, ordered that:
● It is hereby Declared that the initiation, maintenance and prosecution
of the petitioner/exparte applicant Dr Bitange Ndemo in the Chief
Magistrate’s court ( Anti corruption ) vide criminal case No. 19
of 2014 is an abuse of the criminal justice system and in
 contravention of the applicant’s constitutional rights and
freedoms and security of the person and the right to secure the
protection of the law;
● It is hereby Declared that the initiation and prosecution of the
criminal case against the petitioner/applicant in the Chief
Magistrate’s Court( ACC) vide criminal case No.
19 of 2014 amounts to selective and
therefore discriminatory prosecution and a gross abuse of the
process of court.
● It is hereby Declared that the initiation, maintenance and
continued prosecution of the petitioner/applicant in the Milimani
Chief Magistrates Court (ACC) vide criminal case No. 19/2014 is
oppressive, malicious and an abuse of the process of court.

b) Restraining an administrator from acting or continuing to act in breach of his

lawfully duty or legal rights of the aggrieved persons (restraining order).

c) Directing an administrator to give reasons for his administrative action or

decision (provision of reasons).

d) Prohibiting an administrator from acting in a particular manner (prohibition).

e) Setting aside the administrative action made by the administrator and

remitting it to the administrator for reconsideration (certiorari) .

f) Compelling the administrator to perform a public duty owed in law in respect

of which the aggrieved person has a legally enforceable right (mandamus)

g) Granting a temporary relief (conservatory orders). This is meant to maintain

the status quo (e.g. stopping or staying the removal of an individual from
office, or their eviction from their home) pending the conclusion of the
judicial review case.

h) Awarding costs or other pecuniary compensation in appropriate cases

(damages).

However, as can be deduced from the below case of Republic v County

Government of Mombasa Exparte Outdoor Advertising Association of
 Kenya [2018] eKLR, damages are not available in judicial review proceedings
brought under common law (Order 53 of the Civil Procedure Code).
However, a person seeking damages can do so under judicial review
proceedings anchored under Article 23(3) and 47 (1) of the Constitution of
Kenya or Section 11 of the Fair Administrative Action Act, 2015.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

JUDICIAL REVIEW CASE NO. 63 OF 2013

IN THE MATTER OF AN APPLICATION BY OUTDOOR ADVERTISING ASSOCIATION OF KENYA FOR

ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA 2010, THE COUNTY GOVERNMENT ACT NO. 17 OF
2012 AND THE PHYSICAL PLANNING ACT, CAP 286 OF THE LAWS OF KENYA

AND

IN THE MATTER OF OUTDOOR ADVERTISING ASSOCIATION OF KENYA

BETWEEN

REPUBLIC..........................................................................APPLICANT

VERSUS

COUNTY GOVERNMENT OF MOMBASA.................RESPONDENT

EX-PARTE OUTDOOR ADVERTISING ASSOCIATION OF KENYA

RULING

Introduction

1. By a Notice of Motion application dated 28 th October 2013 upon grant of leave to file an application for judicial review, the ex-
parte applicant sought for the following specific orders:

a. An order for certiorari be and is hereby issued to remove into this court and quash the entire decision by the respondent
made on 29.05.2013 and 8.10.2013 directing the pulling down and removal of all erected advertising signages, structures
and devices of members of the ex-parte applicant within Mombasa County Road Reserves.

b. An order of Prohibition be and is hereby issued prohibiting the respondent from pulling down and removing all erected
advertising signage, structures and devices of members of ex-parte applicant within Mombasa County Road Reserves.

c. The costs of the application be paid by the respondent.

Judicial Review

2. Upon hearing the application for judicial review, the court on 14/04/2014 gave judgment for the ex parte applicant and made the
following orders:

a. An order of certiorari is granted as prayed in prayer No. 1 of the Notice of Motion.

b. The order for prohibition sought in prayer No. 2 of the Notice of Motion is declined for having been overtaken by events.
 c. The ex-parte applicant’s members herein will be awarded such damages for breach of fair administrative action as
the court shall determine upon submission in that behalf by the parties on a date to be fixed.

3. The ex-parte applicant filed an affidavit in support of claim for damages, which prompted the respondent to file this instant
application before the court. The director of Visions Advertising, Mr. Jabess O. Mdhai, and the legal officer of Magnate Ventures
Limited filed affidavits in support of the claim for damages, as follows.

Affidavit in support of claim for damages by Laura Kenyan

4. She is the Legal Officer of Magnate Ventures Limited a member of the applicant. She averred the respondent’s action had led to
the destruction of seven (7) structures located at Likoni (2), Buxton (3) and Nyali bridge (2) which were 10 x 12 double sided
structures were 6 and 20 x 12 structure which was one. The cost of constructing a double sided 10 x 12 including cost of construction
materials cost of erecting a structure and labour for base construction and fabrication amounting to Ksh. 24,379,308/=. The
annexure shows the billboard fabrication and erection costs breakdown was done by Pace Associates Consulting Engineers on
11/06/2014.

Further the cost of constructing a 20 x 12 included cost of constructing materials, cost of erecting structure and labour for base
construction and fabrication which amounted to Ksh. 5,653,616/= which was done by Pace Associates Consulting Engineers.

5. She further averred that Magnate Ventures Limited entered into contracts with various clients including Safaricom Limited,
Reckitt on two sites, BDF, Jubilee insurance, Samsung Electronics East Africa Limited, Equity Bank Limited and K-Rep.

Further Affidavit by Jabess O. Mdhal

6. He swore an affidavit as the Director of Visions Advertising a member of the Outdoor Advertising Association of Kenya. He
stated that this court on 14th April 2014 awarded the applicant damages for breach of fair administrative action for the destruction
of structures.

7. The deponent averred that structures were destroyed and the costs incurred included: costs of erecting the structures costs of
printing the flexis and rent from the clients as at 31st January 2014. He listed the various clients who had paid for their services.
The contracts for the work, the local purchase orders, invoices and receipts evidencing payments were attached.

8. In addition to this, he averred that the total cost of the structures and the flexis was Ksh.20,793,600/=. The cost for loss of revenue
as a result of the loss of rent from the clients was Ksh. 1,340,000/= from 31 st January 2014 until payment in full. (the annextures of
the said documents were attached).

Issue for determination

9. The court has referred to the application and the submission in support of and in opposition of the objection. The following issue
arises for determination:

i. Whether or not the court has jurisdiction to hear and determine the assessment of damages.

Determination

10. The court in its Judgment dated 14/04/2014 had issued the following orders at paragraph 20, as follows:

“For the reasons set out above, I make the following orders on the exparte applicant’s Notice of Motion dated 28 th October
2013.

1. An order of certiorari as granted as prayed in prayer No. 1 of the Notice of Motion.

2. The order for prohibition sought in prayer No. 2 of the Notice of Motion is declined for having been overtaken
by events.

3. The ex-parte applicants members herein will be awarded such damages for breach of fair administrative
action as the court shall determine upon submission in that behalf by the parties on a date to be fixed”.

11. From the above, the applicant went ahead and filed documents for the court to assess damages. The respondent urged that the
court did not have jurisdiction to determine the issue of damages once it issued the judgment. The applicant on the other hand urged
this court to dismiss the application and assess the damages.
12. This court in its judgment at paragraph 19 had stated as follows:

“it is clear that the respondent’s decision violated the ex-parte applicants constitutional right to fair administrative action
under Article 47 of the Constitution and the ex-parte applicant’s members are in the circumstances of the case entitled to
damages for breach of the Constitutional right. As damages are not recoverable under the judicial review procedure, the
court will in interests of justice deem the proceedings as having been brought under Article 22 of the Constitution for
the enforcement of the Constitutional provisions of fair administration action and consequently award damaged for the
breach thereof.”

13. The respondent urged that the applicant did not plead damages in its Judicial Review application and relied on the decision of
the Court of Appeal at Malindi between Gideon Nassim Kiti v. Faiza Oscar Meuli & Anor Civil Appeal No. 35 of 2013, where
the trial Judge had ordered the appellant to allow the respondents to have quiet and peaceful enjoyment of the suit land and the
Court of Appeal held that “we agree that a Judge can only give what has been asked for”. Similarly, in Nairobi City Council v.
Thabiti Enterprises Civil Appeal No. 264 of 1996 where it was held that a Judge had no power or jurisdiction to decide on an issue
that had not been pleaded unless the pleadings were suitably amended.

14. In granting the judgment for damages for breach of fair administrative action, this court was clear that the order on damages
for breach of fair administrative action was not awardable under Judicial Review Procedure, and consequently deemed the
proceedings as proceedings for the enforcement of the Bill of Rights under Article 22 of the Constitution which provides as below:

i. “Every person has a right to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights has
been deemed, violated or infringed, or is threatened.

ii. In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by;

a. A person acting on behalf of another person who cannot act in their own name

b. A person acting as member of, or in the interest of, a group or class of persons.

c. A person acting in the public interest or

d. An association acting in the interest on one or more of is members.

In so doing the Court relied on the Court of Appeal decision in Githunguri v. Attorney General (1986) KLR 1.

15. However, in a subsequent decision of Emfil Limited v. The Registrar of Titles Mombasa & 2 Ors (2014) eKLR the Court of
Appeal has decreed that a court is not entitled to deem an application for judicial review as one made under the constitution where
the applicant has consciously chosen to adopt the special procedure for judicial review in preference of the constitutional procedure
of the new Constitution of Kenya 2010, and held as follows:

“[17] In the appellant’s case, the application for Judicial Review was made in August 2011 after the promulgation of the
Constitution of Kenya 2010 (hereinafter the Constitution), which replaced the repealed Constitution. Article 23 of the
Constitution, provides for an order of Judicial Review as an appropriate relief that may be granted in the enforcement
of the Bill of Rights. Clearly, the appellant had the option to bring his application under Article 22 and 23 of that
Constitution, but opted for Judicial Review proceedings under Order 53 of the Civil Procedure Rules.

[18] The extract of the judgment of the High Court reproduced herein above (paragraph 13) reveals that the adoption of
the constitutional reference proceedings under Article 22 and 23by the learned judge was basically to expand the
proceedings in order to include the issue of compulsory acquisition. But the appellant in the notice of motion only
mentioned compulsory acquisition in passing. It was not a specific relief that was sought. Unlike the Githunguri case, it
cannot be said that it was necessary to convert the applicant’s Judicial Review proceedings to a constitutional reference
in order to allow the court the latitude in granting relief. The issue of compulsory acquisition was not before the judge for
determination, such as to justify expanding the proceedings to accommodate it. The only interest that was advanced by the
change in the nature of the proceedings was that of the alleged squatters. The appellant having specifically moved the
court for orders of Judicial Review, which were available to the appellant under Order 53 of the Civil Procedure Rules,
the court had no business tampering with his application by turning it into an application for enforcement of the bill of
rights under the Constitution.
 [19] Judicial Review proceedings, are proceedings of a sui generis nature subject to its own peculiar rules. While we
appreciate Article 159 of the Constitution and the need to apply substantive justice, that article provides no justification
for a court to ignore a specific procedure provided by law and deliberately chosen by a litigant, nor does it allow a court
to bend backwards to accommodate persons who have deliberately failed to protect or assert their interest. Thus the
court was bound to apply the specific provisions of Order 53 of the Civil Procedure Rules. Rule 4 of the Order provides
that the relief granted in Judicial Review proceedings can only be the relief sought in the statutory statement filed
under Rule 2 of the same Order, and in this case neither compulsory acquisition nor compensation for compulsory
acquisition was a relief sought by the appellant.

[20] Further, the order made by the trial judge converting the proceedings from one of Judicial Review to that of a
Constitutional Reference was in the nature of a direction that ought to have been given during the pre-trial stage. Coming
as it did at the final stage in the judgment it had the effect of re-opening the proceedings. The judgment was therefore not
a final decision as envisaged under Order 21 Rule 1&4 of the Civil Procedure Rules. In this regard the order made by the
learned judge may be distinguished from that made in the Githunguri case, in which the order of prohibition that was
issued finally determined the litigation. In light of the orders which were made by the trial judge, declining to protect the
appellant’s constitutional right to property, the conversion of the appellant’s application from one of Judicial Review to
one of enforcement of the bill of right was prejudicial to the appellant and was purely for the benefit of the squatters who
had opted not to pursue their rights.”

16. The matter would also appear to be affected by the decision of Court of Appeal on the principle of functus officio in Kenya
Airports Authority v. Mitu-Bell Welfare Society & 2 Ors [2016] eKLR held as follows:

“Subject to limited exceptions, delivery of judgment renders a trial court functus officio. The trial court erred in law in
reserving for itself outstanding issues to be considered after judgment. The court further erred in allowing affidavits and
or pleadings to be filed after delivery of judgment.

Whereas a court has jurisdictional competence to issue interim orders, the trial court failed to appreciate that the concept
of partial or interim judgment is not part of the Kenyan legal system. Whereas a trial court has the jurisdictional
competence to make interim orders, the trial court erred in delivering a judgment that was not a final judgment that
determined the rights and liability of parties.

17. This Court is bound by the decisions of the Court of appeal and I, respectfully, accept that in the circumstances of this case, the
court had no jurisdiction to alter the case of the ex parte applicant and deem it as one made under constitutional procedure for the
enforcement of the Bill of Rights of the Constitution of Kenya 2010 and that following the judgment of the Court, this court
became functus officio.

Orders

18. The court therefore makes the following orders:

a. The preliminary objection by the respondent is allowed.

b. There shall be no order as to costs.

Order accordingly.

EDWARD M. MURIITHI

JUDGE

DATED AND DELIVERED THIS 11TH DAY OF OCTOBER 2018.

E.K. OGOLA

JUDGE

Appearances:

M/S Havi & Co Advocates for the Ex parte Applicant.

M/S Mogaka Omwenga & Mabeya Advocates for the Respondent.

LESSON 9: EXCLUSIONARY/OUSTER/FINALITY CLAUSES

Exclusionary/ouster/finality clauses are those constitutional or statutory provisions

that exclude or purport to exclude Judicial Review.

In Judges and Magistrates Vetting Board & 2 Others v Centre for Human Rights
and Democracy & 11 Others, Sup. Ct. Petition No.13A of 2013 (as consolidated
with Petition 14 of 2013 and Petition 15 of 2013), the Supreme Court of the Republic
of Kenya (SCORK) observed that:

“…ouster clauses are provisions in the Constitution or statute that take away,
or purport to take away the jurisdiction of a competent Court of law. They
deny the litigant any judicial assistance in the relevant matter, and at the same
time deny the Courts the scope for making any arbitral contribution with
respect to the relevant matter. In short, ouster clauses curtail the jurisdiction
of the Court, as the relevant matter is rendered non-justiciable before the
Courts… Ouster clauses have been adopted for certain practical and
procedural reasons: protecting the integrity of the relevant body, by separating
it from the formal legal process; and ensuring finality, preventing unnecessary
litigation, or interventionist judicial proceedings. The relevant tribunals,
boards or other bodies are perceived as agents of justice in their special modes,
and it is deemed unnecessary to review their decisions. By this arrangement,
these bodies or organs are seen to protect the integrity of the relevant system.
Ouster clauses can be categorized as constitutional or statutory. Where they
are statutory ouster clauses, the statute may confer exclusive jurisdiction on
the relevant body to determine the relevant matter. In such a case, the relevant
body must act under the statute, and not outside it…”

Functions of Ouster Clauses

From the above Supreme Court judgment, the two main functions of ouster clauses
are:

a) Protecting the integrity of the relevant body, by separating it from the formal
legal process; and

b) Ensuring finality, preventing unnecessary litigation, or interventionist judicial

proceedings.
Forms of Ouster Clauses

Ouster clauses take various forms such as:

o Clauses barring second-guessing the decision of the administrative body such

as: the award of the tribunal shall not be questioned or reviewed by any court,
or any legal proceedings.

o Finality clauses such as: decision of this body is final and conclusive and shall
not be questioned in any court.

For example:

● Section 29 (1) of the Land Adjudication Act Cap 284 of the Laws of Kenya
provides that a person aggrieved by a determination of an objection under
Section 26 of the Act may appeal to the Minister (for Lands) within 60 days
from the date of the determination, and the order of the Minister shall be final.

● Section 22(4) of the Vetting of Judges and Magistrates Act provided thus: “A
removal or a process leading to the removal of a judge or magistrate from
office under this Act shall not be subject to question in, or review by, any
court.”

Further, ouster clauses may also be found in constitutions. For example:

● Section 23(2) of the Sixth Schedule to the Constitution of Kenya provides

thus: “A removal, or process leading to the removal, of a judge, from
office…shall not be subject to question in, or review by, any court.”28

Indeed, in Judges and Magistrates Vetting Board & 2 Others v Centre for Human
Rights and Democracy & 11 Others, one of the issues for determination before the
Supreme Court of Kenya was whether Section 23(2) of the Sixth Schedule to the
Constitution and Section 22(4) of the Vetting of the Judges and Magistrates Act

28
Section 23(2) of the Sixth Schedule to the Constitution of Kenya, 2010 amplified Section 23(1) of the Sixth Schedule that called for enactment of legislation to
establish mechanisms and procedures for vetting of judges and magistrates who were in office on the effective date of the Constitution in order to determine their
suitability to serve in accordance with the values and principles under Articles 10 (national values and principles of governance) and 159 (principles to guide the
exercise of judicial authority). The Vetting of Judges and Magistrates Act, 2011 established the Judges and Magistrates Vetting Board.
ousted the jurisdiction of the High Court to review the decision of the Judges and
Magistrates Board.

Attitude of courts of law towards ouster clauses

Do constitutional or statutory ouster/finality clauses necessarily mean that a court of

law cannot inquire into a decision through judicial review? It is important to note
that if such clauses were interpreted literally it would mean that an aggrieved person
is bound by the decision of an administrative body however unlawful that decision
is. Literally, it would mean that no court is entitled to go behind that decision by
way of judicial review.

Commonwealth

The attitude of the courts in the commonwealth show a trend that courts will
disregard such ouster clauses where there is a ‘strong and compelling cause’ such as
breach of fundamental human rights or existence of jurisdictional errors. Thus,
Hyatali, CJ observed in Harrikisson v. Attorney-General of Trinidad and Tobago,
Civ. Appeal No. 59 of 1975: “I am firmly of the opinion that a Court would be acting
improperly if a perfectly clear ouster provision in the constitution of a country is
treated with little sympathy or scant respect, or is ignored without strong and
compelling reasons.”

Further, in R v Medical Appeal Tribunal exparte Gilmore (1957) 1 QB 574, the

issue involved the National Insurance (Industrial Injuries) Act 1946, under which
Section 36 (3) provided that any decision of a claim or question “shall be final”. On
the basis of an error on the face of the record, the applicant sought the remedy of
certiorari. Lord Denning stated: “The remedy of Certiorari is never to be taken away
by any statute except by the most clear and explicit words. The word ‘final’ is not
enough. That only means without appeal. It does not mean without recourse to
Certiorari. It makes the decision final on the facts but not final on the law.
Notwithstanding that the decision is by a statute made final, Certiorari can still issue
for excess of jurisdiction or for error on the face of the record. If tribunals were to
be at liberty to exceed their jurisdiction without any checks by the courts, the rule of
law would be at an end.” Thus, by extrapolation, this rule of Lord Denning would
apply to Mandamus and Prohibition.

Therefore, courts will ignore ouster clauses where there are strong and compelling
reasons, or clear and explicit words. This, however, will depend on the
circumstances of each case. Thus, in Anisminic Ltd v. Foreign Compensation
Commission and Another [1969] 2 A.C. 147, the House of Lords held that where a
statutory ouster clause is invoked “courts should interpret it in a manner likely to
preserve the jurisdiction of the courts.

Kenya

The general attitude of judges in Kenya and other countries is that access to the
courts can only be excluded by very clear words to that effect. Further, even where
those very clear words are present, those statutory provisions purporting to deny
access to justice (ouster clauses) will as far as possible be interpreted in favour of
the citizen.

In Kenya, for example, Article 48 of the Constitution enshrines the right of access
to justice. It provides that the State shall ensure access to justice for all persons, and
that any payable court fees shall be reasonable in order not to impede access to
justice.

However, in Judges and Magistrates Vetting Board & 2 Others v Centre for
Human Rights and Democracy & 11 Others, the SCORK noted that the Anisminic
case was not applicable “on all fours” in Kenya. Instead, “courts have perceived
ouster clauses as no more than a professional juristic challenge, each to be resolved
in the context of its special facts and circumstances.”

In the end, the SCORK held that Section 23(2) of the Sixth Schedule was a valid
outer clause. This was because it was merely ‘transitory’ and time-specific with the
aim of fulfilling the intention and requirement of the Constitution that serving judges
and magistrates (as at 27/8/2010) were to be vetted to restore the public confidence
in the judiciary arising from ills such as corruption, human rights abuses and abuse
of office within the judiciary. Thus, since the Constitution should be interpreted
holistically and harmoniously bearing in mind the unique historical context in
Kenya, its transitional provisions should also be fulfilled.

Therefore, the SCORK found that there was no ‘strong and compelling reason’ to
disregard Section 23(2) of the Sixth Schedule since the Vetting of Judges and
Magistrates Act contained provisions to ensure that due-process concerns (by judges
and magistrates) were duly addressed. Therefore, in the finding of the SCORK, none
of the Superior Courts—High Court and Court of Appeal29—had the jurisdiction to
review the process or outcome attendant upon the operation of the Judges and
Magistrates Vetting Board by virtue of the Constitution, and the Vetting of Judges
and Magistrates Act since that supervisory jurisdiction had merely been suspended
(not obliterated) by Section 23(2) during the transitional period.

29
Noteworthy, both the High Court and Court of Appeal had earlier held that Section 23(2) of the Sixth Schedule was an invalid ouster clause since it could not
oust the supervisory jurisdiction over inferior subordinate courts and quasi-judicial entities (such the Judges and Magistrates Vetting Board) under Article 165(6) of
the Constitution especially with regard to enforcement of human rights