Judicial Review in Kenya - The Ambivalent Legacy of English Law - 12 March 2020

Judicial
Review in Kenya: The Ambivalent Legacy of English Law

Migai Akech

In Judicial Review of Administrative Action: Origins and Adaptation Across the
Common Law World, Swati Jhaveri & Michael Ramsden, eds (Cambridge
University Press, 2020) (forthcoming).

Abstract

This Chapter considers the evolutions in the practice of judicial review in Kenya,
and the continued relevance of English law, in the broader context of the role of
judicial review in facilitating the attainment of democratic governance. It argues
that English law bequeathed to Kenya an ambivalent legacy that continues to
shape the exercise of the judicial review power. In theory, law has promised to
provide a bulwark against the abuse of governmental power. In practice,
however, it has largely served to facilitate authoritarianism. The Chapter begins
by locating judicial review in the context of governance in colonial and post-
colonial Kenya. It then examines the nature and role of judicial review in the
Kenya colony, Independent Kenya, and more recently after the promulgation of
the Constitution of Kenya 2010.

Key words

Administrative Law; Judicial Review; Democracy; Authoritarianism; Governance
– Formal and Informal; Rule of Law; Law and Politics; Judicial Deference.

I. Introduction

Judicial review can, at least in theory, facilitate the attainment of democratic
governance. This power of the courts to declare the exercise of governmental
power ‘either contrary to, or in accordance with the constitution or other
1
governing law’1, not only promises to ensure limited government, but can also
provide a significant means through which individuals can participate in
governance. The latter potential of judicial review is particularly important in
the context of authoritarian or dominant-party rule, which do not usually ensure
that all affected individuals are represented in decision-making processes.
Common law systems of administrative law typically proceed on the premise
that the exercise of power can potentially threaten or adversely affect the vital
interests of individuals or groups thereof, such as their liberties and livelihoods.
The role of the courts may vary depending on how skeptical they are of the
capacity of governance structures to avoid such encroachments. Through
mechanisms such as judicial review, administrative law can give individuals or
groups an opportunity to participate in the making of administrative decisions,
and to hold to account those who exercise power: something that is, again,
particularly important in the context of authoritarian or dominant-party rule. In
common law jurisdictions, the principles and procedures of administrative law
are a product of English common law. Although these principles and procedures
appear to be the same in most common law systems, they are often articulated
differently owing to various historical, social and political reasons – as Kenya’s
experience will demonstrate.
This Chapter considers the evolutions in the practice of judicial review in
Kenya, and the continued relevance of English law, in the broader context of the
role of judicial review in facilitating the attainment of democratic governance. It
argues that English law bequeathed to Kenya an ambivalent legacy that
continues to shape the exercise of the judicial review power. In theory, law has
promised to provide a bulwark against the abuse of governmental power. In
practice, however, it has largely served to facilitate authoritarianism. Part II
locates judicial review in the context of governance in colonial and post-colonial
Kenya. Part III examines the nature and role of judicial review in the Kenya
colony. Part IV examines the nature and role of judicial review in Independent
Kenya. Part V examines the nature and role of judicial review after the
promulgation of the Constitution of Kenya 2010. Part VI concludes.

1 B.O. Nwabueze, Judicialism in Commonwealth Africa (London, 1977) 229.
2
II. Governance in Colonial and Post-Colonial Kenya

In order to understand the evolutions in the practice of judicial review in Kenya,
it is useful to examine them in the context of the dynamics of governance in the
colonial and post-colonial states. How did the prevailing English notions of
governance influence the colonial enterprise? Secondly, what role did these
notions subsequently play in the governance of the independent state? Thirdly,
what role did law play in both contexts?
Throughout the colonial period, the subjugation and domination of the
colonized characterized governance. The colonial polity was decidedly
undemocratic, particularly for the African population. It was a polity in which
Africans were subjects, and not citizens; the paternalistic and despotic colonial
government decided what was best for Africans, without consulting them.2
Asians fared better, as they came to enjoy rights that in some respects were
comparable to the ultimate lords of the colony, the white settlers.3
Britain acquired control of Kenya in 1895, having decided to declare it a
protectorate and take over from the Imperial British East Africa Company, which
it had hitherto deployed as the instrument of acquisition and administration.4
Prior to the declaration of the protectorate, Britain had enacted a Foreign
Jurisdiction Act, which gave it the power to exercise jurisdiction over its
colonized territories.5 Among other things, this law gave Britain the power to
promulgate regulations for the protectorate and hold courts.6 Ironically, the
inhabitants of the protectorate were not British subjects in the eyes of English
law, yet were subject to the laws of the protecting power.7 Thus, while the local
inhabitants were treated as foreigners, the colonizer deemed it necessary to
assume power over them on the basis that it needed to ensure effective

2 Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism
(Princeton University Press, 1996).

3 Y.P. Ghai and J.P.W.B. McAuslan, Public Law and Political Change in Kenya: A Study of the Legal
Framework of Government from Colonial Times to Present (Oxford University Press, Nairobi,
1970) 47-50, 163-166.
4 Ghai and McAuslan at 3.
7 Ghai and McAuslan at 18. While this may be typical of colonial governance, the unequal
treatment is stark: residents denied citizenship rights and were subject to oppressive laws, such
as the East Africa Order in Council 1897, S.R.O. 1575/1897.
3
government in the protectorate.8 It therefore enacted laws, which gave it power
to establish courts with jurisdiction over the local inhabitants, the so–called
native courts.9 However, the colonial government did not have much regard for
law, as it had assumed jurisdiction over the local inhabitants even before the
establishment of these courts.10 Law, therefore, played an instrumental role in
the colonial enterprise enabling Britain to assume full governmental powers in
the protectorate.11 Thus, although Britain claimed that its rule would introduce
the rule of law in Africa, it deployed law as a weapon for colonial domination.12
From the very beginning, law consequently became “a tool at the disposal of the
dominant political and economic groups”, and not an instrument for the weak to
control the strong, as the rule of law ideal would dictate.13
In terms of governance, the protectorate was headed by a Commissioner
(later Governor when Kenya became a colony in 1920) who was the chief
executive officer of the territory and was only answerable to the Colonial
Secretary, who was based at the Colonial Office in Whitehall, England. The
Commissioner/Governor had extensive powers, including the powers to make
laws, establish courts and appoint judicial officers.14 A team of administrators –
consisting of an executive council and local administrators – supported the
Commissioner. In practice, however, there “was too little control of senior
officials by Whitehall, and by senior officials of their juniors”. 15 Further,
“administrators in the protectorate often did not know what the law allowed or
forbade them to do, or if they did, sometimes considered that it was unrealistic
and ignored it”.16 A legislative council was subsequently introduced, although it
did not exercise any real power, the colonial enterprise being based on the
principle that the legislature was subordinate to the executive.17 In fact, until

9 Ghai and McAuslan at 19-20.
13 Ghai and McAuslan at 34
4
1948 the Commissioner/Governor was the Speaker of the Legislative Council.18
The courts also lacked the will to control the administration.19 For example, in
Nyali Ltd v Attorney-General, Lord Denning, asserted that “Once jurisdiction is
exercised by the Crown the courts will not permit it to be challenged”.20
Throughout the colonial period the safeguards of the common law – a system
of law that developed to protect the property of individuals and limit the power
of the state to expropriate resources21 – were only available to the privileged
races, the citizens. In fact, it was inconceivable that an African, a mere subject,
however much aggrieved by governmental action, could have dared to file a
judicial review action against the colonial state.22 In any case, such a litigant
faced other formidable obstacles, including finding the resources to file a suit,
and a lawyer who could take up the case. As an institution for the regulation of
state power, judicial review was therefore constrained by its adversarial nature.
Thus, state action would be unconstrained unless able and willing individuals
who had the resources and courage to confront the state emerged. In any case,
and as we shall see, the grants of power to administrators were so broad that the
courts found it difficult to invoke the ultra vires doctrine.23 So that far from being
constrained by any notions of constitutionalism, the colonial state was highly
authoritarian and was defined by control and coercion.24 In turn, statutory laws
characterized by high degrees of discretion enabled such control and coercion.25
For various reasons, independence did little to change this picture. Although
Kenya became independent in 1963 under a liberal constitution with elaborate

18 J.B. Ojwang, Constitutional Development in Kenya: Institutional Adaptation and Social Change
(ACTS Press, Nairobi, 1990) 31.

20 Nyali Ltd v Attorney-General [1956] K.B. 1 at 15.
21 Sandra F. Joireman, “The Evolution of the Common Law: Legal Development in Kenya and
India” (2006), Richmond School of Arts & Sciences, Political Science Faculty Publications, Paper
68, at 4.
22 See the contribution by Farrah Ahmed and Swati Jhaveri on India in this volume for an
interesting parallel in the Indian context

23 Robert B. Seidman, “Administrative Law and Legitimacy in Anglophonic Africa: A problem in
the Reception of Foreign Law” (1970) 5 Law & Society Review 161 at 181.
24 H.W.O. Okoth-Ogendo, “Constitutions without Constitutionalism: Reflections on an African
Paradox”, in Constitutionalism and Democracy in Transitions in the Contemporary World (Douglas

Greenberg et al, eds, New York, Oxford University Press, 1993) 69.
25 Okoth-Ogendo at 77.
5
arrangements for the protection of minorities26, the independence government
began undermining the constitutional arrangements that circumscribed majority
power as soon as it assumed office. In doing so, it reasoned that the
independence constitution’s structures were unworkable and that, as the
principal agent of development, the government needed to be clothed with wide-
ranging powers if it was to fulfill the expectations of the citizenry. A more
plausible reason, however, is that having been properly schooled in colonialism,
the new rulers thought that the autocratic structures of the colonial system of
government were more attractive than the “restraints and delicate balances” of
the liberal independence constitution.27
As far as governance was concerned, independence for the most part
therefore meant continuity, as the independence government sought to maintain
the colonial edifice. The culture of authoritarianism, now taking the form of an
“imperial presidency”, thus persisted.28 In this endeavor, the inherited colonial
laws, which as we have noted were characterized by high degrees of discretion,
came to the aid of the new government keen to consolidate and exercise despotic
power. As H.W.O. Okoth-Ogendo has observed, “it was the [inherited] legal order,
not the constitutional order, that offered African elites real power and the
bureaucratic machinery with which to exercise it effectively”. 29 These
authoritarian statutory laws remained in force thanks to the common law’s
presumption of constitutionality, by which these laws retained their validity
until they were repealed or the courts overturned them.30 Accordingly, Kenya’s
political elite quickly embraced this familiar statutory order and in many ways
reinforced it. Like their colonial predecessors, they considered the facilitation of
state power to be the primary purpose of law.

26 The provisions of the Independence Constitution for protection of minorities included: a
federal system of government consisting of a national government, eight regional assemblies, and
a bicameral legislature; an independent judiciary; protection from the deprivation of property;
and, protection from discrimination on the grounds of race and ethnicity.
27 Yash Pal Ghai, “The Constitution and the Economy”, Institute of Economic Affairs, Annual
Lecture, (January 28, 2002) 13.

28 See H. Kwasi Prempeh, “Presidents Untamed” (2008) 19 Journal of Democracy 109 at 110. The
term “imperial presidency” denotes presidential supremacy, which is created through the
appropriation by the president of the powers reserved by the constitution to other branches of
government.
29 Okoth-Ogendo at 71.
30 H. Kwasi Prempeh, “Marbury in Africa: Judicial Review and the Challenge of Constitutionalism
in Contemporary Africa” (2006) 80 Tulane Law Review 1 at 27
6
English law has therefore had an ambivalent legacy in Kenya. In theory, it has
promised to provide a bulwark against the abuse of governmental power. In
reality, however, it has largely served to facilitate authoritarianism. In the
colonial era, while the settlers could easily access the safeguards of the common
law, other races faced formidable challenges in their endeavors to hold
government accountable for its actions and decisions. After independence, the
political elite simply replaced the privileged white settlers, with the result that
the protections of English law, including judicial review, continued to be
inaccessible for most citizens. Let us now consider how judicial review in Kenya
has evolved in this context.

III. The Irrelevance of Judicial Review in the Kenya Colony
1895 - 1962

As we have noted, Britain formally imposed the common law, including
administrative law, on the Kenya colony. At the same time, however, an informal
system of governance emerged during the colonial period. The role of judicial
review, or lack thereof, in the colonial era therefore needs to be examined in the
context of the interactions of these formal and informal systems of governance.
The formal system of governance was, of course, derived from norms and
practices then prevailing in England. Here, “the burgeoning welfare state” had
occasioned the expansion of administrative law “in a country with an unwritten
constitution, absolute parliamentary supremacy, and a ministerial system of
administration”.31 The bureaucracy that administered this welfare state satisfied
the requirements of a formally rational-legal bureaucracy in a number of
respects.32
First, the bureaucracy was instrumental to the political institutions. In
particular, the bureaucracy was subordinate to Parliament, the supreme policy-
making body. 33 Second, administrative roles were defined narrowly in an
attempt to preclude capriciousness in decision-making. 34 Third, “deeply

31 Seidman, “Administrative Law and Legitimacy in Anglophonic Africa” at 164, 165.
32 Seidman, “Administrative Law and Legitimacy in Anglophonic Africa” at 164.
7
entrenched traditions of the civil service” required administrators to consult
affected groups before making decisions.35 Court-enforced rules of natural
justice supplemented these traditions.36 Fourth, accountability institutions –
including bureaucratic controls, Parliamentary control, and judicial review –
sanctioned these norms.37 Finally, lawyers were available to file judicial review
applications on behalf of individuals aggrieved by administrative action.38
Unfortunately, “Of these institutions, only the formal, court-enforced norms of
administrative law made the long trip to Africa”.39
These norms were to be enforced by a complex and desegregated judicial
system. First, there was a system of superior courts that applied norms of
English law. This system consisted of three classes of subordinate courts, three
classes of subordinate native courts, and a high court (later supreme court) to
handle appeals from these courts and exercise “control, supervision and
revisional jurisdiction” over them.40 The subordinate courts were invariably
staffed by administrative officers, who consequently simultaneously exercised
executive and judicial power.41 Appeals from the high court lay to the East
African Court of Appeal and ultimately to the Judicial Committee of the Privy
Council. These superior courts applied English law and procedure, and “catered
primarily for the immigrant communities who regarded English law as their
law”.42 In addition, the Governor established native tribunals, which primarily
applied customary law, and whose decisions were subject to revision by
administrative officers “where they saw good reason to do so”.43 There was also
a system of courts for Muslims, which applied both Muslim and English law.44
The three systems of courts were distinct, even if there were overlaps.45
The court-enforced norms of English law were soon accompanied by an
informal system of governance that rendered the formal system virtually useless.

42 Ghai and McAuslan at 164, 172.
45 Ghai and McAuslan at 164. See the contributions on Malaysia and New Zealand in this volume
for on similarly legally pluralistic systems.
8
The British faced two formidable challenges in their endeavors to establish an
effective system of government in the protectorate.46 First, they did not have
sufficient English administrators. Second, the protectorate consisted of a vast
territory, with varying ecological and social conditions that were bound to make
communicating over long distances extremely difficult. As the British saw it,
these circumstances made decentralized administration inevitable. They
therefore established a system of indirect rule, consisting of the
Commissioner/Governor who established the main lines of policy and was
assisted by an executive council, and a team of district commissioners who were
“in charge of interpreting, modifying, and implementing policy in light of local
conditions”.47 In turn, coopted native chiefs working through native institutions
assisted the district commissioners.48
As Mahmood Mamdani has noted, the district was the real locus of colonial
administration, making it imperative for the district commissioner, as the “man
on the spot”, to “be carefully identified, groomed and placed”.49 The challenge of
communication meant that the man on the spot would enjoy wide discretionary
powers with few, if any, constraints on its exercise. Thus, in an effort to ensure
that these individuals would be accountable to the center, a system was designed
to ensure the selection of self-disciplined individuals who could be trusted to
pursue the interests of the colonial service; persons who would be proud of the
service and its traditions and would not betray them. 50 By this system,
individuals who had the “character and personality to deal with natives” were
recruited from English public schools and Oxbridge.51 The colonial service was
looking for “men who considered it their birthright to rule, and who did so by
habit”.52 This explains why these men were drawn from English upper class
society.

46 Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late
Colonialism (Princeton University Press, 1996) 73-74.

47 Mamdani, Citizen and Subject at 74.
9
This system of appointment “gave rise to a common set of values and a
ubiquitous informal organization”.53 This set of values was found in the shared
public school ethic, which served as a “surrogate for detailed rules”. In other
words, these officials could be trusted to pursue the goals of the colonial
enterprise without being micro-managed. As Robert B. Seidman has observed,
“the more effective the selection, the less need for socialization, and the more
effective the socialization, the less need for supervision”.54 This system of
selection produced a homogenous colonial service whose functionaries formed
“an informal organization that ultimately became far more important than
formal rules and bureaucracy”.55 In this informal organization, formal rules
“setting out rational decision-making procedures and explicitly setting forth
guides to discretion” were considered irrelevant, on the rationale that the
administrators had, by their superior backgrounds and public school training,
internalized what was needed to rule the backward Africans.56 In other words,
these English gentlemen did not require any rules stipulating rational decision-
making procedures, as they knew what was best for the African.57 The colonial
service firmly believed that the “collective wisdom” of these gentlemen would
ensure a more efficient system of administration than a legal code ever could.58
Interestingly, other whites in the colony were also included in this informal
organization.59 For example, white settlers and English firms with subsidiaries or
branches in Kenya “had no difficulty in finding informal channels of
communication with officials, which in most cases served in the stead of formal
control devices”.60 This informal organization was later formalized with the
creation of boards to regulate industry and agriculture, which the settlers and
expatriate entrepreneurs dominated.61 Invariably, these boards enjoyed wide-
ranging rule-making powers.62 In these circumstances, the white settlers simply
had to invoke the informal organization to protect their interests, and had no

10
real need to resort the formal, court-enforced norms of English law.63 Despite
much rhetoric to the contrary, Britain therefore bequeathed to Kenya a culture of
authoritarianism, not democracy. Robert B. Seidman aptly captures this legacy,
when he writes that:
“If the “British ideal” so carefully inculcated in the aristocratic family, the public school,
and the university means anything, it must include the notion of the rule of law, the unceasing
effort to govern by law, not by man alone. What the colonial service bequeathed to Africa was
its precise opposite: a tradition that good government was made by good men, and a set of
authoritarian institutions which were designed to give the widest possible scope to individual
discretion, rather than an instrumental system with easy communication with the governed,
narrowly defined roles, institutions for rational decision-making, and sanctioning devices to
enforce the rules.”
Evidently, the requirements of a formally rational-legal bureaucracy that in
Britain served to ensure that government exercised its powers according to the
rule of law were absent in colonial Kenya. First, the administration was not
answerable to the governed. Second, administrative roles were defined broadly,
as the system trusted the judgment of the “man on the spot”. Third, there were
no accountability institutions to sanction maladministration. At one level, the
legislature had no real oversight powers, and was in any case dominated by
white interests as it for a long time consisted entirely of ex officio and appointed
members.64 At a second level, the judicial structures largely protected white
interests. Further, judicial officers had no security of tenure and served “at the
pleasure of the Crown”.65
In the colonial era, therefore, the received rules of administrative law were
“largely incompetent to correct abuses”.66 In particular, the overly broad grants
of power confounded the ultra vires rule.67 For example, the East African Order
in Council 1902 gave the Commissioner the power to “make ordinances for the
administration of justice, the raising of revenue, and generally for the peace,
order and good government of all persons in East Africa”. Further, courts largely
disqualified themselves from reviewing administrative action on the reasoning

64 Steven B. Pfeiffer, “Notes on the Role of the Judiciary in the Constitutional Systems of East
Africa Since Independence” (1978) 10 Case Western Reserve Journal of International Law 11 at
20.
65 Pfeiffer at 26.
11
that the decisions at hand were “executive” or “legislative”, rather than “quasi-
judicial” 68 – as happened, for example, in Re Marle’s Application.69 In doing so,
they followed English precedents.70 While this approach made some sense in the
English context where Parliament in fact exercised political control over the
administration, it made little sense in the Kenya Colony where the African
majority was not even represented in the legislature.71 Unlike its English
counterpart, the legislature in the Kenya Colony did not exercise any political
control over the administration since it had no meaningful oversight powers. It is
also worth noting that the colonial judicial officers were members of the
informal organization, given that they came from the same class and social
backgrounds as the administrators. It was, thus, to be expected that they would
find the authoritarian ideologies of the colonial service agreeable.72 All these
factors culminated in the absence of judicial control of the administration.73 In
every sense, therefore, the colonial system of governance was “a parody of
English democracy”.74
Things only begun to change from the 1940s as African and Asian agitation for
independence and equal treatment compelled the colonial government to start
making concessions.75 It is in this context that middle class Africans and Asians
started using the norms of administrative law, also because a cadre of able and
willing African and Asian lawyers was now available.76 An example is Koinange
Mbiu v Rex.77 Here, the relevant ordinance gave the Governor the power to limit
coffee growing by areas. However, the Governor made regulations that sought to
restrict Africans from growing coffee in particular areas. The court held that the

69 Re Marle’s Application [1958] EALR 153.
70 In Re Marle’s Application, the Kenya Supreme Court followed the English precedent of Smith v
East Elloe Rural District Council [1956] AC 736.

71 Seidman, “Administrative Law and Legitimacy in Anglophonic Africa” at 178-179.
72 Robert B. Seidman, “Judicial Review and Fundamental Freedoms in Anglophonic Independent
Africa” (1974) 35 Ohio State Law Journal 820 at 839.

75 See, for example, H.W.O. Okoth-Ogendo, “The Politics of Constitutional Change in Kenya Since
Independence, 1963-69 (1972) 71 African Affairs 9.

76 See also, Municipal Board of Mombasa v Kala (1955) 22 EACA 319; Patel v Plateau Licensing
Court (1954) 27 KLR 147; Mwangi v R (1950) 24 (1) KLR 72.

77 Koinange Mbiu v Rex (1951) 24(2) KLR 130.
12
Governor had acted ultra vires by purporting to determine the races that could
grow coffee.
A second example is Sheikh Brothers Limited v Hotels Authority78, where the
applicable regulations empowered the Hotels Authority to fix the percentage of
accommodation for those residing in hotels on a monthly as opposed to a daily
basis. Following a complaint by the residents of the applicant’s hotel, the Hotels
Authority purported to fix the percentage of accommodation for monthly
residents at one hundred per cent. The applicants, who were middle-class Asian
owners of a hotel aggrieved by this decision, brought an action to quash it. The
court held that the Hotels Authority had exceeded its powers, reasoning that
some “comparative relation as may be considered reasonable must be
maintained between accommodation fixed for monthly residents and other
residents”. Yet another example is Ndegwa v Nairobi Liquor Licensing Court79,
where the court quashed the decision of a tribunal for bias. Prior to holding a
meeting at which it purported to cancel the African applicant’s liquor license, the
president and another member of the tribunal had visited the applicant’s
premises and informed him that the tribunal would cancel his license. Further, at
the relevant meeting of the tribunal, the two had not only given adverse evidence
but also participated in the making of the decision to revoke the license.
Perhaps anticipating that applications for judicial review would become a
more common feature of the judicial system, the colonial government then
enacted the Law Reform Ordinance 1956. This law gave the High Court the
power to issue the orders of mandamus, prohibition and certiorari in instances
where the High Court of England could issue similar orders under the English
Administration of Justice (Miscellaneous Provisions) Act 1938. The Law Reform
Ordinance was later amended to empower the High Court to grant the above
judicial review orders notwithstanding the availability of alternative remedies.80
Despite these late changes, however, we can safely conclude that
constitutionalism, defined as government limited by law, was not practiced in
the Kenya Colony. The colonial state was subject neither to popular control nor

78 Sheikh Brothers v Hotels Authority (1949) 23(2) KLR 1.
79 Ndegwa v Nairobi Liquor Licensing Court (1957) EA 709 (Kenya).
80 Law Reform (Miscellaneous Provisions Amendment) Ordinance No. 16 of 1960.
13
to effective judicial control.81 Further, law played an instrumental role, namely
facilitating the exploitation of the resources of the Colony while subjugating the
African majority. The transferred common law played a significant role in this
respect, largely serving as an instrument that the courts used to approve or
ignore the actions of the colonial state while doing little to constrain its
excesses.82

IV. Judicial Review in Independent Kenya: 1963 – 2010

Although there were two main political parties (the Kenya National African
Union or KANU and the Kenya African Democratic Union or KADU) when Kenya
became independent in 1963, the country quickly joined the ranks of the one-
party states when KADU was dissolved in 1964 and its members joined KANU.83
The Independence Constitution of 1963, designed by Whitehall technicians to
establish democratic methods of governance, was quickly rendered useless
through a series of amendments that consolidated power in the president84.
Kenya was to remain a de facto one party state until 1982, when, following an
announcement by a number of prominent government critics that they would
form an opposition party, the legislature amended the constitution to legalize the
one-party system.85 Dissent was not tolerated in the one-party state, for the most
part and governance was characterized by oligarchic rule, with an imperial
president at the helm.
The oligarchy prescribed a fairly narrow role for the judiciary. Indeed, the
judiciary played a significant role in protecting the interests of the oligarchy. 86 In
many ways, this represented a continuation of the policies and practices of the

81 James C.N. Paul, “Some Observations on Constitutionalism, Judicial Review and Rule of Law in
Africa” (1974) 35 Ohio State Law Journal 851 at 862.

82 Paul, “Some Observations on Constitutionalism, Judicial Review and Rule of Law in Africa” at
862.
83
See Ojwang, Constitutional Development in Kenya at 47 for a further discussion of the events
relating to the dissolution of KADU and transfer of its members to KANU. The one party-state
had been justified as “the only rational and practical course in the organisation of new African
states.” Ojwang, Constitutional Development in Kenya at 46.
84 See Okoth-Ogendo, “The Politics of Constitutional Change in Kenya”.
85 Republic of Kenya, Constitution of Kenya amended in 1982 (1969).
86 Kuria G. Kamau and J. B. Ojwang, “Judges and the Rule of Law in the Framework of
Politics: The Kenya Case”, (1979) Public Law 254.
14
colonial government. 87 This circumscription of the role of the judiciary was
achieved through the establishment of constitutional rules that enabled the
executive to control the judiciary,88 which rules remained in place until the
enactment of a radically different Constitution in August 2010.89 In addition, the
exercise of judicial power in Kenya was at this time considerably influenced by a
culture of judicial restraint, with judges avoiding confrontations with the
executive in cases where they thought their decisions were likely to affect
political outcomes.90 This cautious approach may in part be explained by fear of
the executive, which wielded immense power over the judiciary, including the
power to appoint and dismiss judges.91 This section considers some of the main
factors that influenced the role of judicial review in checking executive power in
independent Kenya.

(a) The Post Independence Period: 1963 to 1989

On the basis that an impartial and independent judiciary would be required if the
rule of law were to thrive in Kenya, section 184 of the independence constitution
established a Judicial Service Commission (JSC) to regulate matters such as
judicial appointments and discipline. Under section 172 of this constitution, the
Chief Justice was to be appointed by the Governor-General, acting in accordance
with the advice of the Prime Minister, while other judges were to be appointed
by the Governor-General acting in accordance with the advice of the JSC. To
further solidify the position of the judicial officers, this constitution provided
that offices of judges could not be abolished when there was a substantive office

87 See, for example, Gary Wasserman, “The Independence Bargain: Kenya Europeans and
the Land Issue 1960-1962”, (1973) Journal of Commonwealth Political Studies 99.
88 Kuria and Ojwang at 61.
89 Republic of Kenya, Constitution of Kenya 2010.
90 See, for example, Kibaki v. Moi and 2 others (No.2) (2008) 2 KLR 308. Here, the High Court
struck out a petition questioning the validity of the election of the president, on the grounds that
the president had not been personally served with the petition. The Court of Appeal affirmed this
decision in Kibaki v. Moi (No.3) (2008) 2 KLR 351. These judicial decisions were criticized for
claiming that the electoral law mandated personal service, yet the text of this law only required
the presentation and service of election petitions without stipulating how such presentation or
service was to be effected.
91 See Migai Akech, “Abuse of Power and Corruption in Kenya: Will the New Constitution Enhance
Government Accountability?”, (2011) 18 Indiana Journal of Global Legal Studies 341.
15
holder.92 Judges could only be removed from office for inability to perform
functions or misbehavior, a determination that would be made by an impartial
tribunal appointed by the Governor-General with appeal allowed to the Judicial
Committee of the Privy Council whose decision the Governor-General would act
on.93 The JSC was also given the power to appoint other judicial officers, such as
magistrates.
However, following numerous amendments to the independence constitution
(now repealed), the power of appointing the Chief Justice vested in the president,
who was no longer required to consult anybody. In addition, while the
constitution required the president to consult the JSC in appointing judges, little
if any consultation occurred in practice. Further, section 62 of this constitution
provided that the President could dismiss the Chief Justice and other judges for
inability to perform the functions of their office or for misbehavior, if an
impartial tribunal recommended their removal. Unfortunately, this constitution
did not spell out the ingredients of these offences and did not establish due
process mechanisms for transparent, objective, impartial and fair removal.
Further, section 61(5) of this constitution gave the President power to appoint
judges in an acting capacity. All of this enabled the executive to control the
judiciary to the detriment of judicial independence. Most of the judges that the
president appointed were expatriates, who were well aware that their tenure
was tenuous, and so were inclined not to upset the apple cart. Unsurprisingly,
therefore, the judges took the view that the government “would not likely
tolerate expatriate judges seeking to use judicial power to overthrow
governmental decisions on matters perceived by government as touching upon
its power to govern”.94
The situation was made worse in 1989 when the judiciary was delinked from
the public service and placed under the office of the Chief Justice.95 As the head of
the judiciary, the Chief Justice now possessed wide ranging but unregulated
administrative powers, including the power to determine which judges heard

94 Seidman, “Judicial Review and Fundamental Freedoms in Anglophonic Independent Africa”
841.
95Paul Mwangi, The Black Bar: Corruption and Political Intrigue Within Kenya’s Legal Fraternity
(2001) 114. Until 1989, the judiciary was treated as a branch of the public service.
16
what cases; where litigants could file their cases and how96; supervising,
disciplining and initiating the process of removing judges and other judicial
officers; allocating office space, housing and cars to judicial officers; and
transferring judicial officers from one geographic station to another. The
exercise of these powers was not regulated, and they were often abused to the
detriment of judicial independence and accountability. Thus, judges confronted
with these powers could be inclined to do the bidding of the Chief Justice.
Moreover, because the appointment of the Chief Justice was a prerogative of the
president, it is not difficult to imagine how the judiciary could have been
deployed in regime maintenance schemes.
In these circumstances, the courts often adopted a conservative or self-
censoring approach when adjudicating political questions, particularly those
they considered to be within the purview of the executive. As Sir Charles
Newbold, then President of the East African Court of Appeal, while espousing a
preference for conservatism on the part of the judiciary, stated:
The courts derive a considerable amount of their authority and perhaps, even more, the
acceptance of their authority from their independence of the executive, from their
disassociation from matters political. In a democracy... the determination of matters
political... rests ultimately with the will of the people through the ballot box. For that
purpose, people elect the executive and the legislature and it is on these two branches... that
the primary responsibility rests. The third branch, the judiciary is not elected and should
not seek to interfere in a sphere which is outside the true function of the judges... it is the
function of the courts to be conservative, so as to ensure that the rights of the individual are
determined by the rule of law.97
By drawing such a distinction between law and politics, it is arguable that the
courts had thereby relegated their role to a minute part of the rubric of public
affairs. The courts had therefore been likely to accord deference to the position
of the executive where the official action complained of was governed by a policy

96 For example, the Chief Justice would issue circulars indicating the courts where litigants could
file their cases or applications. One such circular stated that judicial review applications could
only be filed in Nairobi, the capital city. See, for example, “Lawyers Threaten Suit Against CJ”,
Daily Nation, Tuesday, June 22, 2004, available at https://www.nation.co.ke/news/1056-15322-
117bmcj/index.html.
97 Sir Charles Newbold, The Role of a Judge as a Policy Maker, (1969) 2 East African Law
Review 127 at 133.
17
of the government, relating to, for example, the maintenance of public order.98
This restrained approach was often adopted in cases concerning personal
liberty, freedom of expression and freedom of movement.99
In these circumstances, judicial review did not play a significant role in
checking the power of the Executive. In terms of the applicable law, courts
continued to apply English precedents and procedures in the post-independence
period, pursuant to the Judicature Act.100 The courts based their judicial review
power entirely on English common law. In this regime, while the Law Reform
Act101 provided a basis for the judicial review power, the Civil Procedure Act102
regulated its exercise. The Law Reform Act imported and vested in the High
Court the power to issue the prerogative orders (of mandamus, prohibition and
certiorari) in all cases in which the High Court of England could do so. This
limited jurisdiction meant that the High Court could not grant remedies other
than mandamus, prohibition and certiorari.103 Further, the Law Reform Act
empowered the judiciary to make rules prescribing procedures for judicial
review applications.104 The envisaged procedures were enacted as Order 53 of
the Civil Procedure Rules, made under the Civil Procedure Act.
While the courts often reviewed the decisions of statutory tribunals and local
authorities,105 they construed the constitution restrictively and were careful not
to “substitute their policy views for those of properly constituted government
officials”. In addition, few individuals were willing to confront the authoritarian
and oppressive executive. Kenya’s independence government sought to inherit

98 J.B. Ojwang and J.A. Otieno-Odek, The Judiciary in Sensitive Areas of Public Law: Emerging
Approaches to Human Rights Litigation in Kenya, (1988) 35 Netherlands International Law

Review 29.
99 Ojwang and Otieno-Odek.
100 Judicature Act, Chapter 8, Laws of Kenya.
101 Law Reform Act, Chapter 26, Laws of Kenya.
102 Civil Procedure Act, Chapter 21, Laws of Kenya.
103 This limited jurisdiction meant that the High Court could not grant remedies other than
mandamus, prohibition and certiorari. See, for example, Jotham Mulati Welamondi v Chairman,
Electoral Commission of Kenya [2002] 1 KLR 486.
104 Law Reform Act, section 9.
105 See, for example, Kasuli v. A.G. [1971] E.A. 423; Shah v. A.G. (No.2) [1970] E.A. 523; Shah v.
A.G. [No. 3] [1970] E.A. 543; Shah Vershi Devshi v. Transport Licensing Board [1971] E.A. 289;
Somani’s v. Shirikhanu [1970] E.A. 580; Chaganlal v. Kericho U.D.C. [1965] E.A. 376; Re Maina,
High Court of Kenya Misc. Cause No. 7 of 1969 (unreported); Fernandes v. Kericho Liquor
Licensing Court [1968] EA 640.
18
the colonial administration’s power edifice, and not to replace it.106 Its objective
was continuity, not revolution. Thus, the executive retained its hold on the
judiciary, which therefore continued to be a useful instrument for regime
maintenance.

(b) The Role of the Democracy Movement: 1990 to 2009

Despite such exceptions, judicial review largely remained moribund until the
dawn of multi-party democracy in the 1990s. An increasingly enlightened public
– mostly the elite107 – began to push back against state tyranny, and on occasion
resorted to judicial review. For example, university student leaders, who were at
the forefront of the clamor for democracy, were sometimes suspended or even
dismissed by their universities, and consequently brought judicial review actions
to challenge such decisions.108 University lecturers constitute another group that
was at the forefront of the clamor for democracy and that turned to the courts
seeking judicial review orders to confront state-induced tyranny.109 For the first
time, individuals even acquired the courage to question the decisions of the
Boards of Governors of high schools.110
Although the courts exercised their common-law based power of judicial
review and struck down numerous acts of government during this period,111
their effectiveness to check the abuse of governmental power was constrained
by three primary factors. First, Order 53 established restrictive and technical
rules of procedure, whose effect was to limit access to judicial review. Courts
insisted on strict adherence to the requirements and timelines of Order 53, with

106 See, for example, Okoth-Ogendo, “Constitutions Without Constitutionalism”.
107 See, for example, University Academic Staff Union v Registrar of Societies, Nairobi High Court
Civil application No. 20 0f 1994; Kibaki v Moi & 2 others (No. 2) (2008) 2KLR 308.
108 See, for example, Irungu Kangata and others v University of Nairobi, Misc. Civil Application No.
40 of 2001 (unreported); Geoffrey Mwangi Kariuki v University of Nairobi, Misc. Application No.
4788 of 1992 (unreported).
109 See, for example, Daniel Nyongesa and others v Egerton University College [1990] KLR 692; R
v the Staff Disciplinary Committee of Maseno University and others ex parte Prof. Ochong’ Okello,
Kisumu Misc. Application No. 227 of 2003.
110 See, for example, Elizabeth Wainaina and others v Board of Governors of Pangani Girls School,
Misc. Civil Case No. 818 of 1992.

111 See, for example, Peter Kaluma, Judicial Review: Law, Procedure and Practice (LawAfrica, 2009)
(Contending that judicial review has grown “rapidly in scope and pertinence,” and “extended its
application to areas, powers and institutions that were traditionally believed to be beyond the
reach of the court’s supervisory jurisdiction.”)
19
the result that many arguably meritorious applications were dismissed on
technicalities.112
Second, for a long time the courts adopted a restrictive approach to standing,
with the effect that judicial review applications were not always determined on
the merits. On the one hand, courts should certainly discourage meddlesome
interlopers from invoking their jurisdiction in matters that do not concern
them.113 On the other hand, however, a person with an otherwise meritorious
challenge to the validity of a governmental action should not be turned away on
the mere ground that his or her rights or interests are not sufficiently affected by
a decision he or she opposes.114 In this latter respect, the courts should not be
merely concerned to redress individual grievances, but should, above all, aim to
maintain the rule of law.115 And maintaining the rule of law would mean
encouraging public-spirited individuals to challenge unlawful administrative
action.116 But Kenyan courts tended to discourage such individuals, by insisting
that they had to have a personal stake in the matters before the court.117 Such
individuals, therefore, had to demonstrate that they had suffered some concrete
injury in order to be granted standing. The courts only begun to depart from this
rigid approach in the late 1990s, granting standing to applicants who could
demonstrate that they had a sufficient interest in the matter in question, and
complied with the procedural requirements of Order 53.118
Third, and as we have noted, the judiciary was subservient to the executive
and judges lacked decisional independence, with the result that the courts
tended to adopt an unduly deferential and minimalist approach to exercising

112 See, for example, Republic v. Funyula Land Disputes Tribunal Busia Principal & 2 others [2014]
eKLR (stating that “the court finds that the application for leave was applied for outside the six
months statutory window… and therefore, the court cannot exercise its discretion in favour of
the ex parte applicant, however deserving his application would otherwise be.”)
113 Jowell et al, De Smith’s Judicial Review (6th edition, Sweet & Maxwell, London, 2007) at 70.
114 Jowell et al, De Smith’s Judicial Review at 70.
117 See, for example, Wangari Maathai v. The Kenya Times Media Trust, Nairobi High Court Civil
Case No. 5403 of 1989 (unreported).

118 See, for example, Republic v. Minister for Information & Broadcasting and Ahmed Jibril, ex parte
East African Television Network Limited, Nairobi High Court Misc. Civ. App. No. 403 of 1998
(unreported).
20
their powers, including judicial review, particularly when confronted with
political questions.119
Even where the courts exercised their judicial review power to strike down
offending acts of government during this period, the executive tended to ignore
the orders of the court. The case of Kenya African National Union v Mwai
Kibaki120 illustrates this trend. Here, the applicant, the Kenya African National
Union (or KANU) had filed an application seeking, among others, orders to quash
an executive order by which the government had purported to “repossess” a
building that housed the applicant’s headquarters, and to restrain the
government from taking possession of the building. The court obliged. However,
the minister to whom the order was addressed simply defied the court. Likewise,
in Taib A. Taib v Minister for Local Government,121 the applicant had been
nominated to serve on, and shortly thereafter elected mayor of, the Municipal
Council of Mombasa. The Minister for Local Government revoked the nomination
by a Gazette Notice. Aggrieved by this decision, the applicant filed an application
for judicial review, seeking orders to quash the decision and prohibit the
Minister from interfering with his exercise of the office of mayor. The court
granted these orders. However, the Minister defied the court. No action was
taken against such defiant ministers. This contributed to creating a perception
among Kenyans that there was a “widespread culture of defiance of court
orders”.122
We can therefore see that, just as in the colonial era, English law was, in the
period 1963-2010, on one hand deployed effectively as an instrument of power,
while on the other hand there was the allure that law, including judicial review,
could constrain the exercise of governmental power. Just as in colonial times, the
legal system during this period continued to be characterized by broad grants of
poorly circumscribed discretionary powers, making law an important tool in

119 See, for example, Migai Akech and Patricia Kameri-Mbote, “Kenyan Courts and the Politics of
the Rule of Law in the Post-Authoritarian State from 1991 to 2010,” (2012) 18 East African
Journal of Peace and Human Rights 357.
120 Kenya African National Union v Mwai Kibaki [2005] eKLR.
121 Taib A. Taib v Minister for Local Government [2006] eKLR.
122 Winnie Mitullah et al, Kenya’s Democratisation: Gains or Losses? (Nairobi, Claripress, 2005) 52-
53.
21
bolstering authoritarianism.123 Further, the Executive continued to straddle the
divide between informalism and the realm of legal-rational norms, and based its
actions on formal rules, informal considerations, or some combination of the
two, as expediency dictated.124 And so the fundamental problem remained that
the formal rules – particularly the statutory laws that gave the Executive its vast
discretionary powers – were still insufficiently institutionalized, meaning that
they were all too often open-ended and neither transparent nor accountable.125
They, therefore, availed authoritarian regimes as tools with which to subvert
democracy and constitutionalism.126 Accordingly, the challenge has been to
transform the statutes that give the legal order its imperial or authoritarian
character so that this order conforms to the demands of constitutionalism. Let us
now see whether the Constitution of Kenya 2010 addresses this challenge.

V. The Constitution of Kenya 2010: A Game Changer?

The Constitution of Kenya 2010 affects judicial review in a number of respects: it
seeks to enhance access to judicial review, it has permissive standing
requirements, and also seeks to enhance judicial independence and
accountability. More significantly, perhaps, it establishes a new basis for judicial
review, thereby necessitating new approaches to the process and substance of
judicial review.127 There are now three bases for judicial review in Kenya: Order
53 of the Civil Procedure Rules, Article 47 of the Constitution of Kenya 2010, and
the Fair Administrative Action Act (FAAA) of 2016. As we shall see below, the net
result is that there are now three parallel judicial review jurisdictions namely,
the constitutional petition, the Order 53 application, and the FAA application.
This new regime has created procedural complications that will need to be
resolved if the Constitution is to have a broader impact on the landscape of
judicial review.

123 See Migai Akech, “Constraining Government Power in Africa” (2011) 22 Journal of Democracy
96.
124 Akech, “Constraining Government Power in Africa” at 98.
127 See the contributions on Australia and South Africa in this volume for comparative
discussions on the influence of a written Constitution on administrative law.
22

(a) The New Constitutional Petition Jurisdiction

Article 47 of the Constitution of 2010 provides a new and comprehensive basis
for judicial review. It provides that: “Every person has the right to administrative
action that is expeditious, efficient, lawful, reasonable and procedurally fair.”128
It further provides that a person whose right or fundamental freedom has been,
or is likely to be, affected by administrative action has the right to be given
written reasons for the action.129 It then requires Parliament to enact legislation
to give effect to these rights.130 Clearly, it is no longer necessary for the courts to
resort to the Law Reform Act.131 Some argue that the Constitution impliedly
repeals the Law Reform Act, and Order 53 of the Civil Procedure Rules that are
founded on it. As the discussion below shows, however, the position is more
complicated than this.132 As the High Court observed in Dry Associates Limited v.
Capital Markets Authority & another, “Article 47 is intended to subject
administrative processes to constitutional discipline hence relief for
administrative grievances is no longer left to the realm of the common law or
judicial review under the Law Reform Act… but is to be measured against the
standards established by the Constitution.” 133
Secondly, the Constitution establishes permissive standing requirements. In
addition to persons acting in their own interests, the following categories of
persons may institute courts proceedings: persons acting on behalf of others
who cannot act in their own names, persons acting as members of, or in the
interests of, a group or class of persons, persons acting in the public interest, or

128 Constitution of Kenya 2010, Article 47(1).
131 See Danwood Mzikenge Chirwa, “Liberating Malawi’s Administrative Justice Jurisprudence
from its Common Law Shackles,” (2011) 55 Journal of African Law 105 (Arguing that the
Constitution of Malawi 1994 has fundamentally altered the substantive law of judicial review,
and that Order 53 of the Rules of the Supreme Court of England is subservient to section 43 of
this constitution).
132 See Constitution of Kenya 2010, Sixth Schedule, Clause 7(1), which provides that “All law in
force immediately before the effective date continues in force and shall be construed with the
alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with
this Constitution.”
133 Dry Associates Limited v. Capital Markets Authority & another [2012] eKLR, para. 62; see also
Multiple Hauliers East Africa Limited v. Attorney General & 10 others [2013] eKLR.
23
associations acting in the interests of their members.134 It also provides that
rules of procedure governing the institution of such proceedings should be kept
to a minimum, and should, where necessary, allow courts to entertain
proceedings on the basis of informal documentation.135 In this respect, the Chief
Justice has promulgated Practice and Procedure Rules to govern constitutional
petitions. 136 Under these Rules, a person who alleges that his or her
constitutional right or fundamental freedom has been denied, violated or
threatened may apply to the High Court by filing a petition (which may be
supported by an affidavit) or making an oral application (which the court shall
reduce into writing).137 Further, these Rules require the petitioner to serve the
respondents with the petition within fifteen days of filing it, or such time as the
court may direct.138 The Rules also allow the petitioner to apply for conservatory
or interim orders,139 by way of notice of motion or informal documentation.140
The constitutional petition therefore offers an accessible, non-technical route for
those seeking to vindicate their constitutional rights.
Thirdly, the constitution expands the scope of remedies that courts can grant
where it is established that a person’s rights or fundamental freedoms have been
denied, violated or threatened. It provides that the High Court may grant
“appropriate relief,” including a declaration of rights, an injunction, a
conservatory order, a declaration that an offending law is invalid, an order for
compensation, and an order for judicial review.141 Essentially, this means that a
constitutional petition alleging the violation of Article 47 can seek the orders of
certiorari, prohibition and mandamus.

134 Constitution of Kenya 2010, Article 22(1) and (2).
136 The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and
Procedure Rules 2013, L.N. 117/2013.

Procedure Rules, rule 10.




24
(b) Two Parallel Jurisdictions: Constitutional Petitions and Applications for
Judicial Review Under Order 53

As mentioned in the introduction to Section V above, there are multiple bases for
judicial review. The practice of judicial review has rather been confusing since
the promulgation of the Constitution of 2010. While some applicants approach
the court by way of constitutional petitions (in which they seek all manner of
orders, including judicial review orders142), others continue to approach the
court via Order 53.143 And the courts have continued to entertain both kinds of
applications. In Michael Mungai v. Attorney General,144 for instance, the court
sought to draw a distinction between what it termed an application for “judicial
review simpliciter” and a constitutional petition, but acknowledged that a person
could apply for judicial review using either of these routes.145 It went on to
observe that an applicant who filed an application for judicial review simpliciter
had to comply with the requirements of Order 53, including seeking prior leave
and asking only for the prerogative orders (as contemplated by section 8 of the
Law Reform Act).146 Because the applicant here had failed to seek prior leave, the
court determined that his application was incompetent.147
A similar approach was adopted in Khobesh Agencies Limited & 32 others v.
Minister of Foreign Affairs & International Relations & 4 others.148 Here, the
applicants had sought to rely on a ground that was not stated in their ‘statutory
statement’. Rule 4(1) of Order 53 states that a party is not entitled to rely on any
ground or seek any relief apart from the ones indicated in their statement
accompanying their application for leave, otherwise known as a statutory
statement. The court ruled that the application was incompetent for seeking to

142 Article 22(1) of Constitution of Kenya 2010 provides that “every person has the right to
institute court proceedings claiming that a right has been denied, violated or infringed, or is
threatened.” Further, article 23(3)(f) of this Constitution provides that in any such proceedings,
“a court may grant appropriate relief, including: (a) a declaration of rights; (b) an injunction; (c) a
conservatory order: (d) a declaration of invalidity of any law…; (e) an order for compensation;
and (f) an order for judicial review.
143 See, for example, Peter Muchai v. Teachers Service Commission [2015] eKLR.
144 Michael Mungai v. Attorney General & 9 others [2015] eKLR.
145 Michael Mungai v. Attorney General & 9 others at para. 6.
146 Michael Mungai v. Attorney General & 9 others at 6 & 9.
147 Michael Mungai v. Attorney General & 9 others at para. 9.
148 Khobesh Agencies Limited & 32 others v. Minister of Foreign Affairs & International Relations &
4 others [2013] eKLR.
25
rely on a ground that was not stated in the statutory statement. In doing so, it
noted that although the courts are bound to ensure adherence to the
Constitution in determining judicial review applications, they do not have the
power to change the nature of a judicial review application into a constitutional
petition.149 In the court’s view, to do that would defeat the express provisions of
sections 8 and 9 of the Law Reform Act, which make the judicial review
jurisdiction special.150 Further, the court reasoned that it would therefore be
incorrect for the applicants to equate the court’s judicial review jurisdiction with
its jurisdiction under article 23(3) of the Constitution.151 The Court of Appeal
took the same approach in Nation Media Group Limited v. Cradle – the Children’s
Foundation Suing through Geoffrey Maganya,152 where it stated that “in judicial
review the special jurisdiction is invoked under Order 53 of the Civil Procedure
Rules while the jurisdiction of the court to enforce fundamental rights is invoked
under Articles 23 and 258 of the Constitution.”153
Thus, although the Constitution now requires courts to administer justice
without undue regard to procedural technicalities, some courts have ruled that
failures to comply with the requirements of Order 53 are incurable. In Republic v.
Kahindi Nyafula & 3 others ex parte Kilifi South East Farmers Cooperative,154 for
example, where the applicant filed a notice of motion out of time, the court
determined that “The Law Reform Act, which is the substantive law dealing with
prerogative orders, does not provide for the enlargement of time within which a
party should file the motion.”155
However, the courts’ reasoning in Khobesh Agencies Limited and Nation Media
Group Limited is difficult to comprehend. Article 23(1) of the Constitution gives

4 others [2013] eKLR at para. 31.



152 Nation Media Group Limited v. Cradle – the Children’s Foundation Suing through Geoffrey
Maganya [2016] eKLR.

153 Nation Media Group Limited v. Cradle – the Children’s Foundation Suing through Geoffrey
Maganya, at para. 27.

154 Republic v. Kahindi Nyafula & 3 others ex parte Kilifi South East Farmers Cooperative [2014]
eKLR.
eKLR at para. 9.
26
the High Court jurisdiction to hear and determine applications for redress of a
denial, violation or threat to a fundamental right or freedom in the Bill of Rights.
The right to fair administrative action is one such fundamental right, and, for the
avoidance of doubt, it is contained in the Bill of Rights. The courts no longer
require a special judicial review jurisdiction for the simple reason that the
Constitution has given them a general or universal jurisdiction to hear and
determine applications for the redress of any violations of human rights, of
which the right to fair administrative action is a core component. If such
applications are required to take the form of constitutional petitions, there is
therefore no justification for mandating a different procedure for judicial review
applications where an applicant is challenging administrative action.
A number of courts have taken this approach. 156 In Peter Muchiri Muhura v.
Teachers Service Commission,157 for example, the High Court reasoned that a
person who has filed a constitutional petition is entitled to ask for “both
compensatory relief and orders of judicial review in the same pleading.”158
According to this court, the Constitution had collapsed the ridge between judicial
review proceedings and ordinary actions, thereby opening “avenues to access to
justice and all stipulated remedies in the same proceedings.”159 Similarly, in
Meshack Ageng’o Omondi v. Eldoret Municipal Council and another,160 the court
thought that “the new constitutional order prescribes and favours [a] universal
approach towards the realization of the rights and fundamental freedoms.”161
And in Alex Malikha Wasubwa & 7 others v. Elias Nambkha Wamita & 4 others,162
the High Court held that a party could apply for judicial review orders in a
constitutional petition.
This reasoning resonates with the fact that the Constitution clearly grants the
courts the power of judicial review in Article 47. Further, it confers on the courts

156 But see Republic v. Director of Public Prosecutions & another ex parte Chamanlal Vrajlal Kamani
& 2 others at para. 144 [2015] eKLR (stating that “a declaration does not fall under the purview of
judicial review for the simple reason that the court would require viva voce evidence to be
adduced for the determination of the case on the merits before granting the declarations
sought.”)
157 Peter Muchiri Muhura v. Teachers Service Commission [2015] eKLR.
160 Meshack Ageng’o Omondi v. Eldoret Municipal Council and another [2012] eKLR.
161 Meshack Ageng’o Omondi v. Eldoret Municipal Council and another [2012] eKLR.
162 Alex Malikha Wasubwa & 7 others v. Elias Nambkha Wamita & 4 others [2012] eKLR; See also
Fauzia Tariq Zubedi v. Athman Awadh & 3 others [2013] eKLR.
27
the power to grant “appropriate relief” where a person alleges that Article 47 has
been threatened or violated, including “an order of judicial review.” How can the
Law Reform Act then be considered the substantive law dealing with prerogative
orders? And doesn’t “an order of judicial review” that the constitution
contemplates embrace all of the prerogative orders? The court then asserts that
not even Article 159(2) of the Constitution – which mandates courts to
administer justice without undue regard to procedural technicalities – can come
to the aid of an applicant who has failed to observe the strictures of Order 53.163
Given that the Constitution is the superior law, wouldn’t it be sensible to either
amend Order 53, or interpret it in a manner that makes it compatible with the
Constitution? In these circumstances, it is evident that the constitutional petition
promises better access to judicial review, and a need arises to abandon the so-
called applications for judicial review simpliciter. The Constitution envisages a
simple but clear petition that is unencumbered by technicalities (such as the
need to obtain the leave of the court before filing an application, or restrictive
time limits within which the substantive application can be made or judicial
orders sought). For example, the need to obtain the leave of the court arguably
serves to prolong administrative injustices, and prevents applicants from
seeking timely remedies. In any case, the doctrines of justiciability and standing
can always assist the courts to sift deserving cases from non-deserving ones,
meaning that they are not likely to be inundated with judicial review
applications.
In this regard, it should be noted that the High Court in Gilbert Hezekiah Miya
v. Advocates Disciplinary Committee suggested that section 9 of the Law Reform
Act should be amended “to provide for extension of time in cases where a strict
adherence to the limitations manifests a miscarriage of justice for example
where a decision is made and for some reasons the same is not made public with
the result that the persons affected thereby are not aware of the decision until
after the expiry of the said limitation period.” 164 This was since the Law Reform
Act was based on the premise that the High Court did not have inherent judicial
review jurisdiction, hence the need to take an approach similar to that of

eKLR at para. 10.

164 Gilbert Hezekiah Miya v. Advocates Disciplinary Committee [2015] eKLR, at para. 19.
28
England, where the High Court was given judicial review jurisdiction by section 7
of the Administration of Justice (Miscellaneous Provisions) Act of 1938.165 In
Kenya’s case, Article 47 of the Constitution now gives the courts this jurisdiction,
meaning that the Law Reform Act should be repealed altogether. Indeed, it is
arguable that the Constitution repeals this colonial-order statute by
implication.166
Further, the court in Miya rightfully suggests that “in order to uphold the
values of the Constitution, the court would be perfectly entitled, where an Act of
Parliament exhibits certain deficiencies which make it insufficient to properly
realise the constitutional aspirations to “read in” the omitted words so as to
being the legislation in line with the constitutional aspirations without the
necessity of declaring the entire legislation unconstitutional.”167 So that had the
applicant made an application for the extension of time, the court would have
been prepared to “read in” a provision for extension of time in Order 53, had it
found the application deserving.168 Likewise, in Fauzia Tariq Zubedi v. Athman
Hassan Awadh & 3 others,169 the court thought that the Constitution of Kenya
2010 has liberated applicants from the strictures of the Law Reform Act and the
Civil Procedure Rules, by enabling them to apply for judicial review remedies in
situations where they would have been caught up by the six months limitation.

(c) The Role of the Fair Administrative Action Act 2016

Parliament has since enacted a law – known as the Fair Administrative Action
Act, 2015 – to give effect to Article 47 of the Constitution, and which creates a
third avenue for judicial review.170 This Act adopts a broad definition of
“administrative action,” which it says includes “the powers, functions and duties
exercised by authorities or quasi-judicial tribunals,” and “any act, omission, or
decision of any person, body or authority that affects the legal rights or interests

165 Law Reform Act, section 8(2).
166 See generally H. Kwasi Prempeh, “Africa’s ‘Constitutionalism Revival’: False Start or New
Dawn?” International Journal of Constitutional Law 469 (2007).

167 Gilbert Hezekiah Miya v Advocates Disciplinary Committee [2015] eKLR, at para. 20.
168 Gilbert Hezekiah Miya v Advocates Disciplinary Committee [2015] eKLR, at para 19.
169 Fauzia Tariq Zubedi v. Athman Hassan Awadh & 3 others [2013] eKLR.
170 See the contributions on Australia and South Africa, this Volume, where there have been
similar attempts at codifying administrative justice via legislation
29
of any person to who such action relates.”171 In the latter sense, the definition
embraces both public and private administrative action, and the Act is clear that
it applies to both state and non-state agencies.172 Further, it defines “decision” to
include not only administrative decisions already made, but also those proposed
to be made.173
With respect to how applicants seeking judicial review remedies may
approach courts, the Act provides that a person aggrieved by an administrative
action may apply to the High Court (or a subordinate court upon which original
jurisdiction has been conferred pursuant to Article 22(3) of the Constitution) for
judicial review.174 It does not establish timelines within which such applications
are to be made, and only stipulates that they should be filed “without
unreasonable delay.”175 Further, it provides that an application for review of an
administrative action shall be heard and determined within ninety days of filing
the application,176 without undue regard to procedural technicalities.177 It then
empowers the Chief Justice to make rules to regulate judicial review procedure
and practice.178 Unfortunately, the Act fails to make any reference to the existing
procedures (governing constitutional petitions179 and applications for judicial
review simpliciter). So it is not clear whether the intention of the Act was to
repeal these existing procedures, or simply provide an alternative route. It
therefore fails to resolve the existing confusion on judicial review procedures,
and arguably makes it worse. For example, the Act states that a person aggrieved
by an administrative action may apply for judicial review “without unreasonable
delay,” while Order 53 prescribes timelines within which such applications may
be made. Further, the practice and procedure rules governing constitutional

171 Fair Administrative Action Act, 2015, section 2.
172 Fair Administrative Action Act, 2015,, section 3.
174 Fair Administrative Action Act, 2015,, section 9(1).
179 See Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and
Procedure Rules 2013, L.N. 117/2013.
30
petitions do not stipulate any such timelines, meaning that such a petition can be
filed at any time.180
In these circumstances, are we to assume that the Act, being the later statute,
supersedes the Law Reform Act and Order 53? And how do we reconcile the Act
with the practice and procedure rules governing constitutional petitions?
As far as the substance of judicial review is concerned, there is a need to
unpack Article 47. Given the wording of Article 47, it is arguable that a person
aggrieved by administrative action can apply for its review on the grounds that it
is not expeditious, or that it is inefficient, or that it is unlawful, or that it is
unreasonable, or that it is procedurally unfair. Of these, unlawfulness,
unreasonableness and procedural unfairness are the familiar categories, and
have been accepted by the courts as they are drawn from the inherited English
common law. According to the Merriam-Webster Dictionary, the word
“expeditious” means “acting or done in a quick and efficient way.” Further, it
defines the word “efficient” to mean “capable of producing desired results
without wasting materials, time or energy.” In which case it is arguable that
Article 47 is tautologous when it talks of “expeditious and efficient”
administrative action, for these terms mean the same thing.
A need therefore arises to clarify the grounds of judicial review mentioned in
Article 47, if they are to be manageable by judicial standards. For example, it is
arguable that unreasonableness subsumes actions and decisions that are
inefficient or not expeditious. On this logic, inefficiency becomes an indicator of
unreasonableness. Indeed, as applied in other common law jurisdictions,
unreasonableness is a dynamic concept capable of expanding as judicial and
social attitudes change. 181 For example, it can embrace the concept of
proportionality, which requires courts to consider whether the decision-maker
has struck a fair balance between competing considerations.182 As Woolf et al
have observed, “Proportionality in the sense of achieving a “fair balance” has
always been an aspect of unreasonableness.”183 The net result is that we would

180 Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and
Procedure Rules 2013, rule 4.

181 Woolf et al, De Smith’s Judicial Review at 554.
182 Woolf et al, De Smith’s Judicial Review at 545.
183 Woolf et al, De Smith’s Judicial Review at at 546.
31
have three clear grounds of judicial review under the Constitution: unlawfulness,
unreasonableness and procedural unfairness. The common law can remain
useful, and can be used to interpret or explicate these grounds of review.184 And
new grounds of judicial review can always be created by statute, provided of
course they protect and promote the right to fair administrative action. But it
should be noted that the Judicature Act,185 which continues to list the English
common law as one of the sources of Kenyan law, now requires review so that it
conforms to the Constitution. If only as an expression of sovereignty and the
growth of its legal system, Kenya now needs to be governed by indigenous laws,
and which the people have participated in making, whether directly or indirectly.
Ultimately, the concern should be to ensure that the grounds of judicial review
are manageable by judicial standards in Kenya, for the simple reason that this
approach enables courts to keep within the bounds of their authority and in a
way that meets the needs of applicants and respondents in Kenya.
In this respect, the Fair Administrative Action Act lists numerous grounds of
review.186 For example, it specifies unreasonableness as a ground of review,187
but then lists what are arguably indicia of unreasonableness as specific or
distinct grounds of review – for example, the administrator failed to take into
account relevant considerations,188 or the administrative action or decision was
made in bad faith.189 Further, it lists procedural fairness,190 bias191 and denial of
a hearing192 as distinct grounds of review. Unpacking the grounds of review in
this manner may, nevertheless, be useful from the perspective of administrators,
in so far as they clarify the common law, which only lawyers seem to
comprehend. This approach enables administrators to know, in advance, what is
expected of them in terms of ensuring administrative justice while exercising

184 See, for example, Chirwa, “Liberating Malawi’s Administrative Justice Jurisprudence” at 108
(contending that “The substantive common law reflected in Order 53 is now of secondary
importance only: as an aid to interpreting the provisions of section 43 [of the Malawian
Constitution].”)
185 Judicature Act, Chapter 8, Laws of Kenya, section 3(1).
186 Fair Administrative Action Act, 2015, section 7(2).
187 Fair Administrative Action Act, 2015, section 7(2)(k).
188 Fair Administrative Action Act, 2015, section 7(2)(f).
189 Fair Administrative Action Act, 2015, section 7(2)(h).
190 Fair Administrative Action Act, 2015, section 7(2)(c).
191 Fair Administrative Action Act, 2015, section 7(2)(a)(iv).
192 Fair Administrative Action Act, 2015, section 7(2)(a)(v).
32
power. In future, promulgating guidelines on administrative decision-making
could augment this approach.

(d) Reflecting on the post-2010 Landscape

Despite the apparent confusion in procedure, Kenya has seen an exponential
growth in judicial review since the promulgation of the Constitution of 2010.193
It, however, remains unclear whether this growth in judicial review has
meaningfully enhanced democracy and constitutionalism. While judicial review
has considerably constrained the exercise of power by low-level bureaucrats and
administrative agencies, and even the legislature194, the Executive remains
unconstrained in significant respects. This could be attributed to the persistence
of the inherited common law culture of judicial deference. It seems that judges
remain fearful of engaging the Executive in high-octane political matters. In turn,
this could be attributed to the fact that the Constitution of Kenya 2010 does not
do a very good job of securing judicial tenure. It is arguable that this Constitution
establishes a low threshold for the removal of judges, since judges can be
removed from office on the ground of “incompetence”195, for example, meaning
that the incompetence need not be gross, contrary to international best
practice.196 In addition, the process of removing judges is not sufficiently
protected by procedural safeguards. In particular, this process should be
preceded by a preliminary investigation that respects due process. At present,
however, there are no procedures to guide this investigation.197
Additionally, although the Constitution attempted to limit the influence of the
executive over the Judicial Service Commission, the latter remains capable of
influencing the composition of this commission, meaning that it can continue to
influence the independence of judges. In the recent past, for example, the

193 See Migai Akech, Administrative Law (Strathmore University Press, 2016).
194 See, for example, Martin Nyaga Wambora v County Assembly of Embu and 37 others [2015]
eKLR; Truested Society of Human Rights Alliance v Attorney General and 2 others [2012] eKLR.
195 Constitution of Kenya 2010, article 168(1)(d).
196 For example, the United Nations Special Rapporteur on the Independence of Judges and
Lawyers has observed that removal processes and other disciplinary proceedings should be
confined to “instances of professional misconduct that are gross and inexcusable and that also
bring the judiciary into disrepute”. Report of the Special Rapporteur on the Independence of Judges
and Lawyers, Gabriela Knaul, UN Doc A/HRC/26/32, 2014, para 87.
197 Akech, Administrative Law at 440-444.
33
government has sought to further its interests in the JSC by appointing regime
loyalists to the two positions of representatives of the public.198 The President
has even sought to influence the appointment of judges by refusing to appoint
persons recommended by the JSC.199 Although the constitution mandates the
President to appoint persons recommended by the JSC, the President has
interpreted the constitution as empowering him to vet such persons by carrying
out “background checks.”200 In other words, the President is claiming a non-
existent power to review the recommendations of the JSC. Even the legislature is
now claiming that it has the power to vet judges nominated by the courts to sit
on the JSC.201 We can, therefore, expect that these power games will continue in
the foreseeable future. Their net effect is to undermine the independence of the
judiciary.
The Constitution of 2010 also sought to rid the judiciary of regime actors, and
provided a framework for the removal of “unsuitable” judicial officers, on the
basis that the public had lost “faith in the Judiciary’s ability to dispense justice
fairly, impartially and without fear”.202 It consequently required Parliament to
enact a law establishing mechanisms and procedures for vetting “the suitability
of all judges and magistrates who were in office on the effective date to continue
to serve in accordance with the values and principles set out in Articles 10 and
159.”203 More importantly for our purposes, the Constitution then stipulated in
an ouster clause that: “A removal, or a process leading to the removal, of a judge,
from office by virtue of the operation of legislation contemplated under
subsection (1) shall not be subject to question in, or review by, any court.”204

198 See, for example, “What Jubilee’s Judicial Service Commission Appointments Really Mean,”
Sunday Nation, 22 March 2015, available at <http://www.nation.co.ke/news/politics/Judicial-

Service-Commission-Appointments-Judiciary/-/1064/2661742/-/6xwcbpz/-/index.html>
199 See, for example, Geoffrey Mosoku, “LSK Files Petition Seeking to Compel President Uhuru
Kenyatta to Swear in New High Court Judges,” Standard, 10th July 2014, available at <
http://www.standardmedia.co.ke/article/2000127681/lsk-files-petition-seeking-to-compel-
president-uhuru-kenyatta-to-swear-in-new-high-court-judges>
200 Mosoku, “LSK Files Petition Seeking to Compel President Uhuru Kenyatta to Swear in New
High Court Judges”.

201 See, for example, “Parliament is Wrong on Warsame Vetting”, The Star, 21 April 2018, available
at < https://www.the-star.co.ke/news/2018/04/21/parliament-is-wrong-on-warsame-
vetting_c1747202>
202 Constitution of Kenya Review Commission, The Final Report of the Constitution of Kenya
Review Commission 206 (2005).

203 Constitution of Kenya 2010, Schedule 6, clause 23(1).
204 Constitution of Kenya 2010, Schedule 6, clause 23(2).
34
Parliament enacted this law in the form of the Vetting of Judges and
Magistrates Act of 2011 (Vetting Act), and a Judges and Magistrates Vetting
Board (the Board) established by this Act was constituted.205 Unfortunately, the
courts were not consistent in their approach to the constitutional ouster clause.
While they defied it in some instances, in the majority of cases they deemed it
inviolable.206 On the rationale that the people of Kenya demanded a speedy
vetting process, the Supreme Court (the highest court) in particular took the
approach that any consequential violations of the fundamental rights of the
affected judicial officers were but a small price to pay, if the country was to get a
judiciary that the Kenyan people would have confidence in. And so, by largely
refusing to assume jurisdiction to interrogate the Vetting Board’s decision-
making processes and decisions, the courts failed to interrogate the suitability of
the vetting process to achieve its declared objectives. For example, the Vetting
Act and its regulations did not establish a decision-making procedure.207 In
default, the Board made decisions by majority vote.208 This was arguably a
lottery, and it fell kindly on some judges, while condemning others.209 What
made it seem absurd was that where there was a tie in the Board’s vote, the
affected judicial officer was given the benefit of the doubt. One could therefore
legitimately question the reasonableness of the Board’s decision-making
procedure by which a tied vote constituted a verdict of suitability (why wouldn’t
a tied vote constitute a verdict of unsuitability?). In these circumstances, it was
difficult for the Board to defend itself against claims that, at least, some of its
decisions were whimsical. More importantly, the message for judges was that
their decisions could be revisited in future with a view to securing their removal.

VI. Conclusion

English law bequeathed to Kenya an ambivalent legacy that continues to shape
the exercise of the judicial review power. On the one hand, Britain introduced a

205 Judges and Magistrates Vetting Act, No. 2 of 2011, section 6.
206 See Akech, Administrative Law at 453 – 461 for an analysis of the decisions of the Vetting
Board and the Courts.

207 Migai Akech, “Is the Vetting Process Really Fair to Judges?, The Star, Monday, 25th June 2012.
208 Ibid.
209 Ibid.
35
formal legal system, including a regime of common-law-based administrative
law. On the other hand, an informal system of governance emerged during the
colonial period. This chapter has examined the role of judicial review in
enhancing democracy and constitutionalism in Kenya in the context of the
interactions of these formal and informal systems of governance from colonial
times to the present. The chapter has contended that a culture of making overly
broad grants of power has not only enabled informalism in governance, but also
undermined the exercise of the judicial review power. In this culture, law is
merely seen as an instrument of power. The idea that judicial review can
meaningfully constrain the Executive thus remains a mirage in significant
respects. Although the Constitution of 2010 promises to bring the formal and
informal governance systems closer, greater efforts need to be made to enhance
judicial independence if the courts are to fearlessly confront Executive
authoritarianism. Attention must also be given to the reform of the statutory law
regime, so that it can conform to the requirements of the progressive
Constitution of 2010.

36

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Judicial

Review in Kenya: The Ambivalent Legacy of English Law

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discussions on the influence of a written Constitution on administrative law.

Procedure Rules 2013, L.N. 117/2013.

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Procedure Rules, rule 14.

Procedure Rules, rule 23.

Procedure Rules, rule 24.

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4 others [2013] eKLR at para. 31.

4 others [2013] eKLR at para. 31.

Maganya [2016] eKLR.

Maganya, at para. 27.

Fauzia Tariq Zubedi v. Athman Awadh & 3 others [2013] eKLR.

eKLR at para. 10.

Dawn?” International Journal of Constitutional Law 469 (2007).

Procedure Rules 2013, L.N. 117/2013.

Procedure Rules 2013, rule 4.

Sunday Nation, 22 March 2015, available at <http://www.nation.co.ke/news/politics/Judicial-

High Court Judges”.

Review Commission 206 (2005).

Board and the Courts.

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