Judicial review is a supervisory jurisdiction exercised by the High Court of Kenya over the decisions and actions of public bodies, inferior courts, tribunals, and persons exercising public functions. Through judicial review, persons aggrieved by unlawful government action can seek orders compelling, prohibiting, or quashing official decisions. Judicial review is one of the most powerful remedies available in Kenya’s public law arsenal and is frequently used by businesses and individuals to challenge regulatory decisions, licensing refusals, procurement irregularities, and arbitrary administrative action.
The Constitutional and Statutory Basis for Judicial Review
Judicial review in Kenya derives from two sources. First, the inherent supervisory jurisdiction of the High Court preserved under section 65 of the Civil Procedure Act and the Judicature Act (Cap 8). Second, and more significantly, the Constitution of Kenya 2010, which in Articles 23, 47, and 165 provides an extensive framework for constitutional judicial review. Article 47 establishes the right to fair administrative action, requiring that administrative action be lawful, reasonable, and procedurally fair, and that written reasons be provided. The Fair Administrative Action Act 2015 operationalises Article 47 and significantly expanded the grounds on which administrative decisions can be challenged.
Grounds for Judicial Review
Illegality
A decision may be quashed on grounds of illegality where the decision-maker acted without legal authority, exceeded the powers granted by statute or the Constitution, or delegated decision-making authority in an unlawful manner. Illegality is the most straightforward ground for judicial review and is frequently invoked where a regulator or government body acts beyond its statutory mandate.
Irrationality (Wednesbury Unreasonableness)
A decision that is so unreasonable that no reasonable decision-maker could have made it is susceptible to judicial review on grounds of irrationality. The Wednesbury unreasonableness standard has been applied extensively by Kenyan courts, though in constitutional judicial review the standard is supplemented by the proportionality analysis introduced by the Constitution 2010.
Procedural Impropriety
A decision made without following required procedural steps, without giving the affected party an opportunity to be heard, or in breach of the rules of natural justice is susceptible to judicial review on grounds of procedural impropriety. The duty to act fairly requires that decision-makers give affected parties adequate notice, a proper opportunity to make representations, and reasons for adverse decisions.
Violation of Constitutional Rights
The Constitution 2010 significantly expanded the grounds for judicial review by permitting challenge of any state action or omission that violates a fundamental right or freedom. This includes the right to fair administrative action (Article 47), the right to access to information (Article 35), the right to access to justice (Article 48), and any other right in the Bill of Rights (Articles 19 to 57).
The Judicial Review Procedure in Kenya
Leave to Apply
An applicant for judicial review must first obtain leave from the High Court under Order 53 of the Civil Procedure Rules or under the Constitution (Article 165). Leave applications are made ex parte on a Form 3 application supported by a verifying affidavit setting out the grounds of review. The court considers the application without hearing the opposing party and grants leave if the application discloses an arguable case. Leave is usually granted or refused within two to four weeks of filing.
Statement of Facts and Filing
Once leave is granted, the applicant files a full Statement of Facts and grounds of review supported by affidavit evidence within the time specified by the court. The respondent (the decision-maker and any interested parties) files opposing affidavits and legal submissions. The parties exchange documents and prepare for a substantive hearing.
Substantive Hearing and Judgment
The substantive judicial review hearing is conducted as a hearing on affidavit evidence supplemented by legal argument. The court does not re-hear the decision de novo (afresh) but reviews whether the decision-making process was lawful. A judicial review hearing typically takes one to three days depending on the complexity of the matter. Judgment may be delivered immediately or reserved for several weeks.
Remedies Available in Judicial Review
The court may grant a wide range of remedies including: certiorari to quash an unlawful decision; mandamus to compel performance of a statutory duty; prohibition to prevent a threatened unlawful act; a declaration of rights; an injunction; or damages where a constitutional right has been violated. The court may also refer a matter back to the decision-maker for fresh consideration in accordance with the court’s guidance on the legal requirements.
Timelines for Filing Judicial Review Applications
Applications for leave for judicial review under Order 53 must be filed promptly. Undue delay in making the application may result in the court refusing leave or refusing relief even if the application is otherwise meritorious. The Fair Administrative Action Act 2015 prescribes that applications for judicial review of administrative action must be filed within six months of the decision being challenged, unless the court extends time for good reason.
Our litigation and dispute resolution practice advises businesses, individuals, and organisations on judicial review applications challenging regulatory decisions, licensing refusals, procurement irregularities, and constitutional violations. For regulatory compliance matters that may give rise to judicial review disputes, early legal intervention is critical. The Kenya Law website provides access to judicial review judgments at kenyalaw.org.
Judicial Review in Employment and Labour Relations Disputes
The Employment and Labour Relations Court (ELRC) has concurrent jurisdiction with the High Court to hear judicial review applications relating to employment and labour matters. This means that a challenge to a decision by a labour regulatory body, a government employment decision, or a public sector employer’s disciplinary decision may be brought by judicial review at the ELRC rather than the High Court. The ELRC has developed its own procedural rules for judicial review applications under the Employment and Labour Relations Court (Procedure) Rules 2016. Challenges to decisions by the National Labour Board, the Salaries and Remuneration Commission, and public sector employers are commonly brought by judicial review at the ELRC.
Constitutional Review vs Judicial Review
Judicial review and constitutional petition are distinct but related remedies in Kenya’s public law. Judicial review under Order 53 of the Civil Procedure Rules focuses on the lawfulness of the administrative process (was the procedure followed, was the decision within the decision-maker’s powers?). Constitutional petition under Article 22 of the Constitution focuses on the violation of fundamental rights. The two may overlap: a decision made in breach of the duty to act fairly violates both the common law rules of natural justice (judicial review ground) and the constitutional right to fair administrative action (Article 47). Where both grounds are available, the constitutional petition route is generally preferred because it provides a wider range of remedies including compensation for constitutional violations. Practitioners must choose the appropriate vehicle carefully to avoid jurisdictional challenges that delay resolution.
Recent Notable Judicial Review Cases in Kenya
Kenyan courts have developed a rich body of judicial review jurisprudence since the enactment of the Constitution 2010 and the Fair Administrative Action Act 2015. Key themes in recent judicial review cases include: challenges to county government regulatory decisions (including business licensing refusals and property demolition orders); challenges to university examination decisions and student disciplinary processes; challenges to public service recruitment and promotion decisions; and challenges to the decisions of regulatory bodies including the CMA, IRA, and CBK. The Kenya Law website at kenyalaw.org provides access to judicial review judgments by the High Court and Court of Appeal, which are essential reading for practitioners and businesses navigating public law disputes in Kenya.
