Article 47 of the Constitution of Kenya, 2010 entrenched the right to fair administrative action. The Fair Administrative Action Act, 2015 operationalised that right and, together with Order 53 of the Civil Procedure Rules, governs judicial review in the High Court.
When does judicial review lie?
Judicial review challenges the decision-making process rather than the merits. Classic grounds are illegality (the body acted outside its powers), irrationality (a decision no reasonable authority could have reached) and procedural impropriety (breach of the rules of natural justice).
The Fair Administrative Action Act expanded these grounds to include bias, taking into account irrelevant considerations, failure to give reasons, and disproportionate interference with rights.
Procedure
Applications proceed in two stages: leave to apply, sought ex parte and supported by a statement and verifying affidavit; and, if granted, the substantive motion. Leave must ordinarily be sought within six months of the impugned decision, although the court retains discretion to extend time.
Remedies
The traditional prerogative orders — certiorari to quash, prohibition to restrain and mandamus to compel — are available alongside declarations, injunctions and, under the 2015 Act, compensation in appropriate cases.
Practical considerations
Internal remedies must usually be exhausted first. Leave does not automatically stay the impugned decision; a separate application is required. Costs typically follow the event but the court frequently makes no order as to costs in public-interest matters.
Citations & further reading
Related practice areas
This article is for general information only and does not constitute legal advice. Readers should obtain specific counsel on their particular matters.