Judicial review in Kenya is the constitutional and legal process by which the High Court examines the lawfulness of decisions, actions, or omissions made by public bodies, state organs, and other persons or authorities exercising quasi-judicial or administrative functions. Rather than re-deciding the merits of a case, judicial review focuses on whether the decision-maker acted within the law, followed fair procedure, and exercised power reasonably.
Legal basis: Judicial review in Kenya draws from several sources: Article 47 of the Constitution (right to fair administrative action), the Fair Administrative Action Act, 2015, Order 53 of the Civil Procedure Rules, and the Law Reform Act. The High Court has supervisory jurisdiction under Article 165 of the Constitution over subordinate courts and tribunals, and over administrative bodies more broadly.
Grounds for judicial review: Courts typically assess claims on grounds such as illegality (acting beyond legal authority or ultra vires), irrationality or unreasonableness (a decision so unreasonable no sensible authority could have made it), procedural impropriety (failure to follow required procedures or natural justice, such as failing to give a fair hearing), and increasingly, proportionality under the Fair Administrative Action Act.
Remedies (orders): The traditional remedies, historically called prerogative orders, include:
- Certiorari – to quash an unlawful decision.
- Prohibition – to stop a body from acting beyond its powers.
- Mandamus – to compel performance of a public duty. Courts may also grant declarations, injunctions, or damages where appropriate under the Fair Administrative Action Act.
Who can apply: Any person whose rights or legitimate expectations have been affected by an administrative or quasi-judicial decision may seek judicial review, generally after exhausting other available remedies, and typically within a reasonable time (often cited as six months for leave applications under the old regime, though the Fair Administrative Action Act has modernized procedure).
Judicial review is a key mechanism for holding government agencies, public officers, and regulatory bodies accountable to the rule of law and constitutional principles of good governance.