Judicial Review in Kenya: Grounds, Procedure and Timelines

Judicial review in Kenya is the High Court’s supervisory jurisdiction over decisions of public bodies, tribunals and others exercising public power. It does not ask whether a decision was right on the merits; it asks whether the decision-maker acted lawfully, reasonably and fairly. Businesses and individuals use it to challenge licensing refusals, regulatory sanctions, procurement decisions and similar action. This guide sets out the legal basis, the grounds, the procedure and the time limits that decide most applications.

The legal basis for judicial review in Kenya

Article 47 of the Constitution gives every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and the right to written reasons for action taken against them. The Fair Administrative Action Act, 2015 gives effect to that right. Section 4 repeats the right to fair action and to written reasons, and section 7 lets a court or tribunal review an administrative action on listed grounds. Separately, the Law Reform Act replaced the old prerogative writs with orders of mandamus, prohibition and certiorari (section 8), and section 9 authorises rules of court prescribing the procedure for them. That procedure is found in Order 53 of the Civil Procedure Rules, 2010.

Grounds of review

Section 7(2) of the Fair Administrative Action Act lists the grounds. They include, among others, that the decision-maker acted without jurisdiction or in excess of it, that a mandatory procedure or condition was not complied with, that the action was taken in abuse of power, that there was an abuse of discretion or unreasonable delay in discharging a duty, that the action is unreasonable, that it is not proportionate to the interests or rights affected, or that it violates a legitimate expectation. The familiar common law labels still help in framing an argument: illegality, irrationality and procedural impropriety. A decision taken without notice or a hearing, or without written reasons, is a typical procedural challenge.

Exhaust other remedies first

Section 9(2) of the Act provides that the High Court shall not review an administrative action under the Act unless internal mechanisms for appeal or review, and all other remedies under written law, have first been exhausted. Under section 9(3) the court that is not satisfied that those remedies were exhausted shall direct the applicant to exhaust them first, and section 9(4) allows the court to depart from that in exceptional circumstances. Before filing, check whether the governing statute gives an appeal to a tribunal or the Cabinet Secretary; filing too early is a common reason applications fail.

Procedure: the Fair Administrative Action Rules, 2024

The Fair Administrative Action Rules, 2024 (Legal Notice 165 of 2024) regulate judicial review applications under the Fair Administrative Action Act. Rule 11 provides that an application for judicial review is made by an originating motion accompanied by a supporting affidavit, substantially in Form JR 2. The motion must state the relief sought and the grounds, identify the action or decision complained of and the person who took it, and contain a statement that internal mechanisms for appeal or review and any other statutory remedy have been exhausted. Any claim for damages must be specifically pleaded. The rules also cover service, replying affidavits, case management, alternative dispute resolution and the form of judgments.

Where the applicant wants an order compelling the respondent to take an administrative action, rule 5 requires a notice of intention to sue, in Form JR 1, served at least seven days before the application is filed. We understand that some provisions of the Rules have been challenged in court. Before relying on rules 5, 6 or 7, confirm whether any interim order affects them at the date you file.

Order 53 of the Civil Procedure Rules

Before the 2024 Rules, and for proceedings that rest on the common law orders rather than the Act, Order 53 of the Civil Procedure Rules, 2010 prescribed the procedure. Rule 1 required leave before any application for mandamus, prohibition or certiorari, sought ex parte from a judge in chambers with a statement of grounds and verifying affidavits. Rule 3 then required the substantive notice of motion within twenty-one days of the grant of leave. Because the two procedures differ on whether leave is needed, decide at the outset which route your application follows and say so in the pleadings.

Time limits

Several limits can apply. Section 9(1) of the Fair Administrative Action Act requires an aggrieved person to apply for judicial review “without unreasonable delay”. Rule 6(1) of the 2024 Rules requires an applicant who wants an administrative action or decision quashed to commence proceedings within six weeks after the date the action was taken. Rule 6(2) and (3) let the court extend time where the applicant was prevented by fraud or misrepresentation from knowing of the decision, or could not with diligence have known of it, considering the delay, the reason for it and any prejudice to the respondent. Under Order 53, rule 2 of the Civil Procedure Rules, leave for certiorari to quash a judgment, order, decree, conviction or other proceeding must be sought not later than six months after the date of the proceeding, or any shorter period an Act prescribes. The older “six months” figure is therefore not a safe harbour. Treat six weeks as the working deadline for challenging a decision under the Act, and file sooner.

Remedies

The court can grant certiorari to quash a decision, mandamus to compel performance of a public duty, and prohibition to stop a threatened unlawful act. It may also grant other orders the Act allows, such as a declaration or a direction that the administrator reconsider the matter. A successful applicant usually gets a quashed decision and a remittal to the decision-maker, not a substitute decision.

Judicial review or constitutional petition?

A constitutional petition under Article 22 targets violations of rights in the Bill of Rights, while judicial review targets the legality of administrative action. The two overlap where a decision breaches Article 47. Choosing the wrong vehicle invites a preliminary objection, so decide the route before filing. We discuss petitions in our guide to the constitutional petition procedure in Kenya.

Frequently asked questions

This article is general information on Kenyan law as at its publication date, not legal advice. Reading it does not create an advocate and client relationship.