Constitutional Petitions Against Unfair Administrative Action: Article 47 in Practice

Constitutional Petitions Unfair Administrative Action Kenya cases under Article 47 are not abstract constitutional theory. For a business, Article 47 is a specific, enforceable standard that applies every time a licence is revoked, a permit fee changes, or an application sits unanswered for months without explanation. This piece is not about how to file a petition generally, which we cover elsewhere; it is about what Article 47 actually gives you that an ordinary complaint does not, and which procedural door to use once you decide to invoke it.

What Article 47 Actually Promises

Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) adds a specific, separate entitlement: where a right or fundamental freedom has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for that action. Article 47(3) required Parliament to legislate to give effect to these rights, which it did through the Fair Administrative Action Act 2015.

The Written Reasons Right Has Real Teeth

Section 6 of the Fair Administrative Action Act turns the constitutional promise of written reasons into an operative mechanism. Under section 6(3), an administrator who receives a request for reasons must furnish them in writing within thirty days. Section 6(4) then does something unusually powerful for Kenyan administrative law: failure to give reasons triggers a rebuttable presumption, in any subsequent review proceedings, that the decision was taken without good reason. The practical takeaway is straightforward: the moment an adverse decision is received, a written request for reasons should go out immediately. It starts a statutory clock, and silence from the decision-maker becomes evidence working against them rather than simply an administrative inconvenience.

Which Door to Use: The Real Technical Question

This is where the procedural landscape genuinely differs from what a general judicial review or petition-procedure guide will tell you, and it is worth setting out precisely rather than in general terms. Ordinary judicial review under Order 53 of the Civil Procedure Rules and the Law Reform Act requires leave of court before proceeding, and a six-month limitation period applies to an application for certiorari. The Fair Administrative Action Rules 2024 set out a materially different track for FAAA-specific judicial review: no leave requirement appears anywhere in the Rules, but a strict six-week deadline applies to commence proceedings to quash a decision, running from the date the action was taken, extendable only on proof of fraud or genuine non-discoverability despite diligence. A freestanding constitutional petition invoking Article 47 directly, filed under the Mutunga Rules, carries no leave requirement and no fixed limitation period in the Rules themselves, constrained only by the judge-made doctrine against inordinate and unexplained delay.

The Court of Appeal’s approach in Kabundu & Another v County Government of Mombasa; Clerk County Assembly of Mombasa & 7 Others [2023] KECA 1330 is instructive on how these tracks actually interact in practice. The appellants, a business association of bar, restaurant and hospitality operators, challenged county business permit and liquor licensing fees. The Court held that section 7 of the Fair Administrative Action Act has itself broadened what judicial review permits, allowing an element of merit review in appropriate cases, rather than confining the court to a bare process check. What the case does not do is establish a bright-line rule dictating which of the three tracks above must be used in any given scenario; the honest position is that FAAA has expanded judicial review’s own reach, while a freestanding Article 47 petition remains available as a genuinely separate route with its own timing advantages.

When a Business Should Plead Article 47 Specifically

The clearest case for pleading Article 47 directly, rather than relying on ordinary judicial review alone, is where the complaint is compounded: a licence pulled without reasons, combined with discriminatory treatment compared to other operators, for example. Bundling Article 47 with Article 27 equality claims or an Article 40 property claim in a single petition opens access to the fuller remedies available under Article 23(3), including compensation, which a pure Order 53 certiorari application cannot reach since it can only quash and remit the decision. Where the goods or business affected are perishable or time-sensitive, the tighter tracks, whether the FAAA’s six-week window or a direct petition, deserve serious consideration over the comparatively leisurely six-month judicial review timeline.